Age-Old Nuisance Laws Could Halt Fracking

26 07 2014

Age-old legal tool poses modern threat for oil and gas

Ellen M. Gilmer, E&E reporter
First in a series on the changing landscape of oil and gas law.

“Nuisance affects the whole fracking debate in a lot of ways,” said Raichel, an attorney for the Natural Resources Defense Council. “In a colloquial sense, it’s pretty clear that fracking is a nuisance in a lot of these communities.”

In a legal sense, nuisance claims cropping up around the country may prove surprisingly effective at reeling in development. The high-dollar Texas verdict — which dealt not specifically with fracking but with broader oil and gas operations — serves as a harbinger of a very litigious future.

To anyone paying attention to the industry, the ripeness of nuisance claims is clear: Horizontal drilling and hydraulic fracturing have unlocked oil and gas in shale formations that sweep across populated areas, bringing production closer and closer to where people live.

“Most oil and gas development, it’s been remote,” said Michael Mazzone, a Houston-based attorney who represented Aruba Petroleum Inc. against the Parr family. “It’s offshore. It’s in Alaska. It’s up in North Dakota. It’s in very, very sparsely populated areas. So you don’t have the conflicts that you have in populated areas.”

Now, he said, as drillers set up camp across the Marcellus and Barnett shales, people have more to complain about, like the odors, vibrations, noise and light — all inherent to oil and gas production — that are suddenly in their backyard.

While lawsuits alleging water contamination have often been derailed by the expensive and heavy burden of linking pollution to drillers, King & Spalding attorney Brannon Robertson says nuisance claims are much easier to support and may resonate more with judges and juries.

“While people have been very focused on the subsurface fracking issues, these cases show there’s another aspect to it,” said Robertson, who represents industry in Texas. “Certainly because it’s on the surface and in the air, I think that it’s easier for a plaintiff to articulate that it’s causing problems and for a jury to comprehend that.”

 

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