Opponents of hydraulic fracturing (fracking) and horizontal-drilling activities initially pursued litigation as one might have anticipated. The suits filed first involved allegations of groundwater contamination and toxic-tort injury. Typically, common-law claims, such as those for nuisance, trespass, negligence, and strict liability, were asserted in those early suits. Occasionally, environmental statutory claims, such as under the federal Air Pollution Prevention and Control Act (the “Clean Air Act”), 42 U.S.C. §§ 7401 to 7671q, surfaced as well. See, e.g., Citizens for Pa.’s Future v. Ultra Res., Inc., No. 11-cv-1360, 2012 U.S. Dist. LEXIS 136494 (M.D. Pa. Sept. 24, 2012). Some of these cases were resolved through private-party settlements, see, e.g., Mitchell v. Encana Oil & Gas (USA), Inc., et al., No. 10-cv-02555 (N.D. Tex. Dec. 15, 2010); others were dismissed (with and without prejudice) because of plaintiffs’ failure to demonstrate a causal link between the alleged injuries on the one hand and hydraulic-fracturing and horizontal-drilling activities on the other. See, e.g., Strudley v. Antero Res. Corp., et al., No. 11-cv-2218 (Dist. Ct., Denver, CO, May 9, 2012).
In short, by pursuing this strategy, those opposed to shale oil and gas development were finding success in their litigation objectives elusive, as they were gaining almost none of the traction for which they had hoped. As a result, environmental organizations, opting not to limit their attack strictly to suits of the type noted above, have adopted a more expansive litigation strategy. A parallel track is emerging, and by embarking on this additional path, these activist groups hope to pose a significant threat to the continued development and production of unconventional oil and gas reserves in the United States.