Hydraulic fracturing (fracking) during natural gas extraction typically takes place thousands of feet below the subsurface. If a nearby residential well or drinking water supply is found to be contaminated, is that automatically due to the fracking activities? Alternatively, might it be due to other naturally occurring influences, such as the natural presence of methane in shallower rock formations?

In what may be a precursor of many lawsuits to come, that question is at issue in a new lawsuit brought in Upstate New York (PDF) on behalf of nine families in Horseheads, New York near Elmira. The lawsuit was brought by Napoli Bern Ripka & Associates, LLP of New York City, which made a name for itself filing claims in the MTBE and World Trade Center litigations. The lawsuit is captioned Baker, et al. v. Anschutz Exploration Corporation, et al. The lawsuit was originally brought in Chemung County State Supreme Court, Index No. 2011-1168, but has now been removed to federal court in Rochester, Index No. 6:11-CV-061190-CJS. The plaintiffs allege that their residential drinking water wells have become contaminated as a result of drilling activities by defendant Anschutz and its drilling subcontractors and that their properties and families have become exposed to combustible gases, toxic sediments, and hazardous chemicals. They seek $150 million in compensatory damages, punitive damages, and future medical monitoring due to fear of contracting cancer.

The natural gas wells in question were drilled vertically to a depth of 10,000 feet and then horizontally into shale formations. The Complaint alleges that the wells’ negligent design caused combustible gas to be "released into the headspaces of the water wells that provide water to plaintiffs" and that "methane, propane or other natural gases" are now present in those wells. Anschutz Exploration strongly disputes this claim and the science appears to be on its side. The New York Department of Environmental Conservation (the "DEC") has issued a "Fact Sheet" based upon its investigation which concludes that natural gas drilling was not the cause of contamination in the plaintiffs' wells. The DEC found that "methane commonly occurs in residential water wells since it is often present in bedrock at shallow depths" and that naturally occurring shallow gas was found to be present by the plaintiffs' properties. The DEC Fact Sheet further states that "methane was present in one residential water well in the neighborhood currently experiencing problems for some time prior to the drilling of the nearby gas well" and that drilling records show that pre-existing methane was present at shallow depths. Finally, the DEC found that "[t]he way the gas wells were constructed makes it unlikely that gas from deeper formations could migrate through multiple cemented casing strings into any aquifers near the surface."

A number of the asserted claims may be very difficult to prove and, given the DEC's position, the science does not appear to be on the plaintiffs' side. Nevertheless, these cases often turn on a battle of experts and the plaintiffs presumably will articulate a theory at some point to counter what the DEC has found. Another asserted claim is under the New York Navigation Law, which can be a powerful tool in groundwater contamination cases given its strict liability standard and attorneys fee provision. This case has only just begun and many issues may need to be developed, such as whether the wells were properly drilled and whether the nature of the underlying rock formations permits the migration of underground gas. This will likely be a closely watched case and may be a precursor of future litigation as the natural gas industry expands.