Hydraulic Fracturing Litigation: The Case of Jessica Ernst & the Problem of Factual Causation

By Hutchison, Oliver | Canada-United States Law Journal, Annual 2018 | Go to article overview

Hydraulic Fracturing Litigation: The Case of Jessica Ernst & the Problem of Factual Causation


Hutchison, Oliver, Canada-United States Law Journal


TABLE OF CONTENTS  I. Introduction  II. Hydraulic Fracturing      A. A Brief History of Hydraulic Fracturing     B. Controversy  III. Hydraulic Fracturing Litigation  IV. Case Study: Ernst v EnCana Corp      A. Background     B. Proceedings to Date     C. Analysis of Negligence Claim: An Issue of Cause-in-Fact  V. The Defects of Tort: Common Law Remedies Are Not the Answer      A. Tort Law Deficiencies     B. The Need for Strict Regulation  VI. Conclusion 

I. INTRODUCTION

Hydraulic Fracturing (or 'tracking') litigation is on the rise. (1) In the United States, it is now common for plaintiffs to allege that hydraulic fracturing processes have contaminated groundwater sources. (2) The primary purpose of this paper is to examine the common law remedies available to plaintiffs in these cases. I argue that the common law, because of the requirement of factual causation, is inadequately equipped to provide redress to plaintiffs in these cases. A more proactive approach, through strict regulation, is necessary to protect people and the environment in the face of presently uncertain geological effects of hydraulic fracturing.

In Part II, I will briefly outline the historical origins of hydraulic fracturing, its modern day uses, and the controversy surrounding the practice. In Part III, 1 will survey contemporary fracking cases and suggest that as a practical matter, plaintiffs will have more success in holding oil and gas companies to account when groundwater contamination is not at issue. In Part IV, I will analyze the pioneering Canadian case of Ernst v. EnCana Corp. and argue that the plaintiff, Jessica Ernst, faces a near insurmountable task in establishing the requirement of factual causation in her pending action against the EnCana Corporation. Finally, in Part V, I will argue that, because of the element of factual causation, tort law is ineffective and cannot achieve its functions (compensation, vindication, punishment, and deterrence) in hydraulic fracturing groundwater contamination cases. A strict regulatory system that imposes a presumption of liability in cases of hydraulic fracking is required.

II. HYDRAULIC FRACTURING

A. A Brief History of Hydraulic Fracturing

Hydraulic fracturing is a technique used to increase oil and gas production from underground oil or gas-bearing rock formations through the injection of high-pressure fracking fluid that fractures reservoir rock, thus releasing trapped natural gas or oil. (3) The fracturing fluid is comprised of water, chemicals, and propping agents such as sand. (4) The propping agents are used to ensure that the fractures created remain propped open after the pressurized injection of the fracturing fluid stops, thus allowing hydrocarbons (e.g., crude oil or natural gas) to flow to production wells. (5) Today, fracking is a very common well-stimulation technique. In the United States, the jurisdiction that first made use of this technology, some 80,000 wells have been drilled as of 2005, (6) and it is estimated that "over 90 percent of all oil and gas wells ... are hydraulically fractured." (7) In more appreciable terms, it is estimated that more than fifteen million Americans now live within one mile of a fracking operation. (8)

While hydraulic fracturing is a relatively novel process (having its origins in the 1948 Kansas oil fields), (9) the process of fracturing subsurface rock formations to stimulate underground resource production began as early as the late 1800s, (10) emerging shortly after the beginning of the United States oil boom. (11) Around this time, oil producers were keen to find a solution to the problem of anemic oil wells. (12) Colonel Edward Roberts, a Civil War veteran, developed what would come to be known as the 'Roberts Petroleum Torpedo': the first fracturing technology. The process at that time involved lowering an explosive device (collection of nitroglycerin-filled canisters) into the base of a well and then detonating it to fracture the rock and allow the oil to flow more easily. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Hydraulic Fracturing Litigation: The Case of Jessica Ernst & the Problem of Factual Causation
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.