May 19, 2014 Articles

Serious Procedural Barriers to Fracking Litigation

Lone Pine orders, Daubert challenges, and Rule 11 sanctions may stand in the way.

Carter F. Thurman and Onika K. Williams – May 19, 2014

With the cost of oil rising since the turn of the century, hydraulic fracking in domestic formations has grown even more cost-effective and prevalent. Proponents see potential to lessen the country’s dependence on foreign oil and increase the commercial viability of natural gas. Critics point to its alleged adverse effects on the environment—ranging from groundwater and air pollution to earthquakes—and suggest that these effects outweigh the benefits. Regardless of one’s position, the number of fracking lawsuits filed each year is growing as a result of these alleged adverse effects. Similar to the industrial processes challenged in traditional toxic-tort litigation, the fracking process is complex and involves sensitive technologies and potentially hazardous chemicals. Just as has occurred in toxic-tort cases, we can expect plaintiffs to encounter serious procedural barriers to establishing their claims.

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