Will frackers be held liable for inducing earthquakes in Oklahoma?

A flare releases pressure from a natural gas fracking well in Oklahoma.  Photo: Joshua Pribanic.

Five years ago, before hydraulic fracturing became a common method to extract natural gas, Oklahoma recorded only three magnitude three earthquakes.  In 2015, Oklahoma recorded 907.  2016 is off to another record-breaking start: last week two earthquakes (magnitude 4.7 and 4.8) struck northern Oklahoma, where fracking dominates.  It's hard to predict if a larger earthquake will rock the state, but these recent quakes suggest that may be likely:

“I do think there’s a really strong chance that Oklahoma will receive some strong shaking,” said Daniel McNamara, a research geophysicist at the National Earthquake Information Center in Colorado, who has followed the state’s quakes.  Referring to the shocks that occurred Wednesday night, he added, “I’m surprised it didn’t rupture into a larger event.”

Most experts believe the drastic increase in earthquake incidence is the result of forcing fracking wastewater into the ground.  While that process is effective in disposing of fracking waste, it also disturbs fault lines.  In some cases, especially in Oklahoma, these disturbances become earthquakes.  

But while the science is clear to some in a broad "A is causing B" sense (fracking is causing earthquakes), the more specific causal connection between a particular fracking operator's activities causing damage to people or property is less clear.  It would be hard for a homeowner whose property has been damaged from an earthquake to present a strong scientific case that the earthquake was caused by a discrete defendant in order to assign liability and claim damages.   Some cases are already popping up, and in most of these property owners are suing a bundle of oil and gas companies in the hopes that they will be collectively responsible.  In regions where more than one company is injecting wastewater underground, that may be the strongest approach, but it dilutes the causal connection.

An added difficulty in these cases is the reality that, in most states, injecting water into the ground is illegal or negligent behavior.  In Oklahoma, neither the state legislature or the governor have taken any meaningful action to curb fracking activities.  Only the Oklahoma Corporation Commission has been assigned to propose restraints, and it has limited regulatory powers:

With no explicit authority to regulate seismic issues, the commission has persuaded producers to voluntarily follow a series of ever-stricter directives on waste disposal in earthquake zones. But while those orders appear to have curtailed earthquakes in some areas, the overall number has continued to soar.  Last month, a financially troubled producer in the northern oil and gas fields struck by Wednesday’s quakes, SandRidge Energy Incorporated, broke industry ranks and refused the commission’s request to scale back its underground waste disposal.

Professor Blake Watson (Dayton) believes courts should impose strict liability on fracking producers on the grounds that groundwater injection is inherently dangerous - a finding that would eliminate the need to show that producers were negligent in their activities.  The downside is that courts aren't the ideal branch of government to sift through scientific studies emerging in real-time and impose liability after-the-fact.  Ideally a strong administrative agency would do so.  In many cases they have proved effective:

In recent years, other states with oil and gas exploration have also seen an unusual number of earthquakes. State authorities quickly suspected that the earthquakes were linked to disposal wells. In Youngstown, Ohio, in 2011, after dozens of smaller quakes culminated in a 4.0, a nearby disposal well was shut down, and the earthquakes stopped. Around the same time, in Arkansas, a series of earthquakes associated with four disposal wells in the Fayetteville Shale led to a ban on disposal wells near related faults. Earthquakes were also noted in Colorado, Kansas, and Texas. There, too, relevant disposal wells were shut down or the volume of fluid injected was reduced and the earthquakes abated.

Absent a strong regulatory agency, though, property owners may have no other recourse than to pursue compensation through litigation, however challenging causation arguments may prove to be.  If Oklahoma's agencies continue to meekly regulate fracking activities and wastewater injection, we'll soon find out how the courts address induced-earthquake liability.