This week a Texas jury awarded nearly $3 million to landowners who claimed that a nearby gas well, which had been hydraulically fractured, constituted a public nuisance. The gravamen of the alleged injury in Parr v. Aruba Petroleum, No. 11-1650 (Dallas County, Texas), was diminution in land value and acute but not life-threatening health effects like headaches and nausea from exposure to fracking-associated chemicals.
The verdict is one of the more important developments since fracking became widespread in the last half dozen years. As late as 2010, plaintiffs’ lawyers were piling in to fracking litigation on behalf of allegedly injured landowners, and observers were predicting a new mass tort of sorts. But the actual number of such suits filed, several dozen in all, never amounted to much relative to the extraordinary number of wells drilled around the country—particularly in light of critics’ claims that more or less every well was hazardous in multiple ways. Prominent plaintiffs’ firms eventually backed out of the space after some early setbacks, and many cases stalled out or went away quietly.
This verdict will probably encourage plaintiffs’ lawyers to take a second look, although the Texas Barnett Shale is somewhat unique in that well development tends to be closer to urban areas, as opposed to Pennsylvania’s more rural Marcellus Shale. And the fact-dependent nature of these cases may limit litigation speculation to some degree.
Nonetheless, firms with potential litigation exposure should study this case and ensure their defenses are robust. Particularly important in that regard are science defenses, which should serve as a bulwark against many of the claimed harms in this case. No doubt those issues will be pursued on appeal.