The environmental impacts of fracking have been an issue and legal controversy for years. However, two new developments indicate that fracking litigation is not only likely to increase, but these developments call into question how such cases will be resolved. Specifically, the Environmental Protection Agency (EPA) has issued a statement that fracking contaminates drinking water. See Coral Davenport, “Reversing Course, EPA Says Fracking Can Contaminate Drinking Water,” The New York Times, Dec. 13, 2016. However, in the same month the report was issued, a new EPA administrator was appointed, one with a long record in favor of fracking. Id. This article examines the controversies that may arise in 2017 and the role of fracking expert witnesses in litigation.
The EPA first issued a comprehensive report on the effects of hydraulic fracking in 2015, and at the time, the potential impact of fracking on drinking water was not part of that report. See id. The 2015 report concluded that there is “no evidence that fracking systemically contaminates water.” Id. However, the agency’s latest findings no longer support that conclusion.
In fact, the EPA now maintains that “the oil and gas extraction technique also known as fracking, has contaminated drinking water in some circumstances.” Id. What is of particular interest is how the EPA reached its new and distinctly opposite conclusion. According to a deputy administrator at the EPA, the reason for the change in language and findings occurred because the environmental experts and scientists whom the EPA consulted concluded that there was not quantitative support for the opinion that fracking does not contaminate drinking water. See id. This report’s latest findings have given momentum to environmentalists and may also do so for environmental attorneys who represent parties who oppose fracking. Moreover, because proving what impact fracking had on a particular water supply requires scientific evidence and guidance, environmental litigators will require fracking expert witnesses among others to prove the potential damages to their clients.
On the opposite side of the equation is the newly-appointed head of the EPA, Scott Pruitt, who “has built his career on fighting EPA regulations on energy exploration.” Id. Even under the Obama administration, fracking regulations were lax. See id. However, the incoming administration has repeatedly expressed its commitment to fracking and has appointed pro-fracking individuals in advisory capacities as well, such as energy advisor Harold Hamm. See id. Moreover, defense firms for fracking companies have already begun to dispute the report’s findings. For example, according to one fossil-fuel lobbyist representing a law firm, “Even the new statement is still consistent with the finding that contamination attributable to shale development is neither widespread nor systemic.” Id. It appears that the issue of fracking’s impact on drinking water will indeed, be a battle of fracking expert witnesses on both sides of the dispute.
Something to watch for in 2017 may be an increase in fracking litigation against the federal government, as it has only one regulation on the books currently, which “applies only to fracking on public lands, which hold about 100,000 fracking wells — representing about 10 percent of all fracking in the United States.” Id. Attorneys may seek to hold the federal government accountable for the alleged damages caused by fracking, arguing that the government knew about its impacts on drinking water yet gave it a green light, ignoring the welfare of the general public. Such litigators, interestingly enough, may even make use of the experts and evidence from the EPA’s latest report to help make their case. It is certainly of note that the EPA report is one that has been in the works since 2010 and that, according to one analyst, is “unprecedented in scope and depth, [and that] it included a review of over 1,000 existing studies as well as new research, modeling and analysis conducted by EPA scientists.” Id. The authors of the studies used by the EPA may turn out to be valuable consultants and persuaders, in their capacities as prospective expert witnesses.
For the defense, there is certainly no shortage of expert opinions on the matter. Some have criticized the EPA report itself, alleging it contains a number of gaps. See id. As for the specific question of whether or not fracking contaminates drinking water, there appear to be experts on both sides, some of whom believe the evidence is simply too inconclusive to support liability for prospective defendants.
The majority of fracking regulations come from state and local governments, and such governments may have a viable defense against potential liability if they can successfully argue that their own regulations provide sufficient protections to claimants.
Regardless of the direction fracking litigation takes in 2017 and the years to come, it will most certainly not abate and, if anything, may increase, due to the combination of pro-fracking regulators and the EPA’s latest report. Fracking expert witnesses among other technical consultants and environmental specialists will undoubtedly play a critical role in resolving these upcoming controversies.
By: Kat S. Hatziavramidis, Attorney-at-Law