The Section of Litigation's November 18 teleconference on the legal issues of natural gas fracking coincided neatly with increasing reports about chemical exposure studies among neighbors around gas wells in the Midwest. The industry speakers on the ABA call were clear and precise: they do not expect successful lawsuits against the gas fracking industry and its suppliers. As long as states maintain sole control over the operations of this controversial process, the industry feels confident that it can repel injury claimants without interference from the plaintiffs, the local governments, or the federal EPA.
It could be useful to step back and examine those views in light of the tort jurisprudence of strict liability, negligence per se, and statutory remedies under state laws. Counsel who has not yet encountered the phenomenon of industrial scale drilling in suburban and developed exurban areas would be surprised by the volume of controversy. Certainly, we all need the benefits that gas brings to our economy, and residents adjacent to the drilling sites or injection disposal well sites are relatively few in number, compared to the millions of users of the gas that is being so vigorously sought in midwestern and eastern regions of the nation. If the gas well neighbors and community residents develop scientific support for claims of adverse effects of chemical exposure, what could the products liability system do for them?