Blake Watson, ‘Fracking and Cracking: Strict Liability for Earthquake Damage Due to Wastewater Injection and Hydraulic Fracturing’

Abstract:
Courts should impose strict liability for earthquake damage caused either by hydraulic fracturing or the underground injection of frack fluids. In determining whether a specific activity is abnormally dangerous, most courts have been guided by the six factors set forth in Section 520 of the Restatement (Second) of Torts. Recent scientific studies on ‘induced seismicity’ (human-caused earthquakes) establish a much strong link between the underground disposal of frack wastewater and significant seismic activity. Even if ‘fracking’ lawsuits raising groundwater contamination claims should be considered under traditional negligence principles, the application of the six factors of Section 520 leads to a different conclusion with respect to earthquake damage claims. Earthquakes occur when subsurface formations are properly fractured. Likewise, the risk of earthquake damage is not substantially mitigated by the exercise of due care when frack fluids are injected into the ground. Furthermore, there are both judicial and statutory precedents for imposing strict liability for surface disturbances caused by oil and gas operations.

Watson, Blake A, Fracking and Cracking: Strict Liability for Earthquake Damage Due to Wastewater Injection and Hydraulic Fracturing (February 1, 2016). 11 Texas Journal of Oil, Gas, and Energy Law 1 (2016).

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