Although hydraulic fracturing has been used in the United States for decades, the process and its alleged impact on water quality have received increased attention and scrutiny within the past two years from the media, Congress, the Environmental Protection Agency (EPA), and other regulatory agencies. Specifically, the scrutiny focuses on concerns about reduction of citizens’ water supplies due to the large volume of water used in the fracking process, alleged contamination of supply aquifers due to fracturing activities, and disposal or recycling of the wastewater or flowback water. Most recently, the attention has surrounded the potential causal link between hydraulic fracturing and earthquakes.
While lawmakers debate potential policies and regulations, and environmental agencies prepare studies and conduct testing, the number of lawsuits that have been filed involving hydraulic fracturing continues to rise. Since September 2009, approximately 40 lawsuits have been filed by landowners in various states against drilling companies. Nearly all of the plaintiffs in these suits are either landowners who leased oil and gas rights to the defendants or landowners who reside in close proximity to wells stimulated by hydraulic fracturing operations.
To date, the authors have not located any legal judgment against a well operator, drilling contractor, or service company for contamination of groundwater or earthquakes resulting from hydraulic fracturing. In fact, as further discussed below, the plaintiffs in one Texas case have filed a voluntary motion to dismiss because recent testing shows the contamination is no longer at a toxic level.