On April 18, 2017, an Oklahoma federal district court issued a judgment dismissing a closely watched Resource Conservation and Recovery Act (RCRA) citizen suit which alleged that disposal of oil and gas drilling waste fluids is causing earthquakes in Oklahoma. Sierra Club v. Chesapeake Operating LLC, et al., No. 5:16-cv-134-F (W.D. Okla. Apr. 18, 2017) (Order and Judgment). The court found that the state regulatory program attempting to address the issue is protected from federal review. Id. The state regulatory program in this case is the federal Safe Drinking Water Act (SDWA) Injection Well Program delegated to the State of Oklahoma and implemented by the Oklahoma Corporation Commission (OCC). The OCC is authorized to implement SDWA regulations relating to underground disposal of oil and gas waste fluids through Class II injection wells in the State. The environmentalists brought the action under RCRA § 7002(a)(1)(B), as a result of increasing earthquakes in Oklahoma and sought an immediate and substantial reduction in the amount of oil and gas production waste injected into the ground.
The court found that the federal judiciary could not exercise jurisdiction over the matter at issue given the Burford abstention and primary jurisdiction doctrines, because OCC had already taken actions to respond to the increase in earthquakes due to wastewater injection activities. The court's judgment was based on a previous April 4th order by the court that explained that the Burford abstention doctrine, which stems from a 1943 Supreme Court decision, specifies that a federal court sitting in equity must dismiss cases where federally reviewing the question at issue "would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern." Sierra Club, No. 5:16-cv-00134-F (W.D. Okla. Apr. 18, 2017) (Order Granting Motion to Dismiss). Both federal and state law have made OCC the primary regulator of Class II injection wells in Oklahoma and federal review would be disruptive of OCC's efforts to establish a coherent policy with respect to seismic activity related to the disposal wells. Further, the court said the seismicity is a major public concern, noting recent actions by the state's governor and legislature to boost funding and authorities to take actions to curb man‑made earthquakes. The court said that the plaintiffs could pursue state-court review and that such relief may be obtained from the OCC.
The court also dismissed the case based on the primary jurisdiction doctrine. The doctrine generally defers to administrative agencies over courts for handling particular regulatory questions. The court invoked this doctrine for several reasons. First, the injunctive relief sought by plaintiffs could be granted by OCC. Second, the court pointed out that technical issues sought to be resolved by the claims are not the same as under a typical RCRA endangerment case. In this case, the court is asked to calculate the amount of acceptable wastewater injection to avoid inducing earthquakes. The court also noted that the OCC has demonstrated diligence in resolving the issues, including recent mandatory measures to lower injection rates. The court went on to conclude that it is "ill-equipped to outperform the [OCC] in advancing" the science of reducing seismic activity near injection wells "and putting the growing body of technical knowledge to work in the service of rational regulation." Id.