The Emerging Litigation Strategy Of Environmental Organizations Seeking To Curtail Shale Oil And Gas Development

Shale Oil & Gas Development

Opponents of hydraulic fracturing 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 Pennsylvania's Future v. Ultra Resources, 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 Resources 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 continued development and production of unconventional oil and gas reserves in the United States.

For opponents of hydraulic fracturing and horizontal drilling activities, the second prong of attack involves the assertion of claims against federal or state agencies under Acts such as the following: the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq.; the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq.; and California's Environmental Quality Act ("CEQA"), Cal. Pub. Res. Code § 21000, et seq. This strategy also extends to the filing of administrative petitions with the U.S. Environmental Protection Agency ("EPA"). Industry opponents are fashioning petitions designed to require industry to provide more detailed data with respect to operations, no doubt hoping that if their petitions are successful, the compelled disclosures will facilitate additional litigation.

In California, there has been a fair amount of activity evidencing this new line of attack. The Center for Biological Diversity (the "Center") recently launched an ESA challenge against the federal agency responsible for managing federal lands and...

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