and "There Will Be Graft" (even as there already has been).
Even right here in the former Gateway to Yosemite, and new Home of UC Merced.
Our state assemblyman, Adam Gray, D-Merced, did not just vote for the fracking-regulation-that-is-not, he proudly announced he was "a principle co-sponsor" of the bill.
That the state that contains the San Andreas Fault, which forms the eastern border of the Monterey Shale Formation, our local shale-oil-and-gas bonanza, is permitting any fracking in that area is an enduring testament to oil-company bribery and political graft in the state Legislature. And when it comes down to it, Adam Gray is not just going along, he is an enthusaistic leader of the bipartisan state Capitol Party of Graft -- blj
The Dallas News
The fracking-earthquake connection
The earth is moving beneath Johnson County.
Ed Specht says his house is in shambles. Walls are cracking, the concrete floor in his bedroom is broken 32 feet across. “The house moans and groans,” he says.
Specht is convinced that the damage is due to the dozen hydraulic fracturing wells under his property, pulling valuable shale gas out of the ground.
But proving a connection between the damage to his property and the wells that pepper Johnson County, south of Fort Worth, is no simple matter.
Yet that is precisely what Specht and his wife, Norma, and another Alvarado couple, Jan and Dan Finn, are determined to do. In July, the two families filed suit in Johnson County District Court for damage to their homes and property caused by “earthquakes, subsidence and other seismic activity.” They named EOG Resources, Enterprise Crude Oil, and subsidiaries of Royal Dutch Shell and Sunoco Logistics as defendants.
“This is a question of what’s fair and just,” says their lawyer, Christopher Cowan of the Cowan Law Firm in Dallas. “It’s about the industry being good neighbors.”
Lawyers for Sunoco and EOG would not comment. Shell says it has not operated in Johnson County since 2007 and has never drilled a well there. Enterprise also says it has no operations in Johnson County. In papers filed with the court, the defendants have denied all allegations.
“When you put the words ‘fracking’ and ‘earthquakes’ together in the same sentence, it sounds huge,” says veteran defense lawyer Jim Vines of King & Spalding in Washington, D.C. “But I doubt it has any legal weight.”
The Johnson County suit is one of dozens of anti-fracking lawsuits across the country. But allegations that fracking or related activities cause earth shifting and property damage are a new phenomenon. A handful of suits first popped up in Arkansas in 2011 and are slowly working their way through that state’s court system.
Now this latest flashpoint in the fracking debate has come to the Barnett Shale, a formation stretching under no fewer than 18 North Texas counties that some say contains the largest reserves of onshore natural gas in the United States.
But lawsuits have their limits in solving wider societal problems. In this case, the state may have an important role to play.
Earthquakes have become a frequent occurrence in North Texas in recent years. Johnson County, Parker County and an area near Dallas/Fort Worth International Airport have been particularly hard hit.
Extracting natural gas from underground reservoirs can cause the ground above those reservoirs to subside, collapsing into the earth.
But while small explosions are used in the fracking process, many experts agree that the “micro-quakes” produced by fracking are too small to pose any serious danger to property.
The real seismic concern, scientists say, is wastewater injection, the process of disposing of the used, chemical-laden fracking fluid into wells thousands of feet below the surface. The wells are sanctioned by the Environmental Protection Agency and designed to prevent the fluid from contaminating groundwater aquifers. But most experts agree that the process increases the risk of more frequent and severe quakes.
Besides Texas and Arkansas, parts of Oklahoma, Ohio and the United Kingdom have also reportedly experienced increased seismic activity near injection wells.
U.S. Geological Survey geophysicist William Ellsworth concluded in a study released this summer that several of the largest quakes in the central U.S. in 2011 and 2012 were probably triggered by nearby injection wells, notably a magnitude-5.6 quake in Oklahoma that destroyed 14 homes and injured two people.
And last year, seismologist Clifford Frohlich of the University of Texas at Austin identified 67 earthquakes of a magnitude 1.5 or higher that occurred in the Barnett Shale between 2010 and 2011. Again, almost all were near injection wells. Frohlich theorized that the movement results from large volumes of wastewater relieving friction in faults that are already under stress.
“It is possible that some of these earthquakes have a natural origin, but it is implausible that all are natural,” Frohlich wrote.
Still, while injection wells can trigger earthquakes, very few of them actually do, says Frohlich. The problem, he says, is proving that any particular quake is man-made.
Fortunately for plaintiffs, the law does not require absolute certainty about the cause of the movements deep below ground. It requires a jury to believe only that it is more likely than not that a plaintiff is right. In other words, 51 percent certainty is all that is needed.
That, and a pile of money.
Environmental lawsuits carry a high price tag. There is the time, administrative costs, evidence to pore over, motions to fight and, most important, an army of experts. An earthquake or subsidence case might draw in seismologists, geologists, soil experts, building experts and real estate evaluators. Suits can run to many hundreds of thousands, if not millions, of dollars and take years to wend their way through the legal process.
Plaintiffs’ lawyers generally work on a contingency fee basis, gambling on a payoff at the end of a case.
But minor earthquakes may cause only cracked wallboard, mildew from broken pipes or damaged heirlooms. That means a relatively small financial loss per plaintiff and little financial incentive for a lawyer to front the money for a lawsuit.
More powerful quakes, however, can cause greater damage and stigmatize an entire community, precipitating a decline in property values. Then cases might be more worth pursuing, says attorney Scott Poynter, who filed the injection well lawsuits in Arkansas.
At their best, class actions enable public interest lawsuits that might otherwise not be brought by spreading the costs across a large number of plaintiffs.
So the Spechts and the Finns are looking for others to join them. They need their case to grow. But that presents another challenge.
Increasingly, courts are narrowing plaintiffs’ ability to band together as a class. Judges scrutinize the issues raised by lawsuits, asking whether the questions to be answered are more or less the same across all members of the proposed class, or whether plaintiffs’ claims are based too narrowly on their own experiences.
In earthquake or subsidence cases, there are bound to be divergent issues, such as the distance of the homes from the epicenters or drill wells, varying soil composition and differences in structure types and building materials.
Such differences scuttled the attempt to form a class in Arkansas. Faced with a challenging fight over certification, the Arkansas plaintiffs decided to pursue their cases individually.
Four of those cases have been settled. While the settlement terms are confidential, Susan Frey — one of the 25 plaintiffs whose cases remain — says she does not expect to be compensated fully for the fractures in her foundation slab, which is damaged beyond repair. “We’ll probably end up walking away and going someplace else,” she says.
The Johnson County suit still has a long way to go. If it is certified and the parties do not settle, the core of the matter will remain: Are the defendant companies responsible for the damage to plaintiffs’ homes?
That raises other issues: Was the seismic activity or subsidence in question man-made? And, if so, did fracking or injection activities cause it? Inevitably, the parties will put forward experts, and those experts will disagree.
But Jan Finn has no doubt that fracking and ground subsidence are to blame.
Late one night, she woke to a crashing sound. “It sounded like a semitruck hit the house,” she said. Three days later, the cracks appeared in her walls. “You could put your finger in them.” Now, she said, the floors of her house are 5 inches lower on one side.
A man from the Texas Railroad Commission told her that a fracking well hub lies beneath her house, she said. “Fracking caused the earth to sink.”
Production from the Barnett Shale has fallen off in recent years, but portions could remain strong for decades to come, according to a UT study published in September.
As far as Chris Cowan, the attorney for the Johnson County plaintiffs, is concerned, this case is not about shutting the industry down. Rather, he asks, “What is the right way to conduct these activities in urban environments?” The damage could be even more severe if large quakes start hitting densely populated areas, he says.
“There are going to be more of these suits cropping up,” says industry defense attorney Mike Lynn of Lynn Tilloston Pinker Cox in Dallas.
Yet favorable settlements only benefit the parties involved, not the public at large. Lawsuits are unlikely to change industry behavior unless the cost of fighting and settling claims — or the negative publicity — exceeds the benefits of drilling beneath homes or injecting wastewater near deep fault lines.
Arkansas recognized this reality last summer when it made permanent a preliminary moratorium on disposal wells in populated areas above its Fayetteville Shale. Ohio imposed a similar ban near one of its injection wells in 2011.
It may be time for Texas to consider formal regulation, too.
Despite the emerging scientific consensus, however, the Railroad Commission states on its website that it has not identified a relationship between wastewater injection and earthquakes. It does not consider seismicity in determining whether to grant an injection well permit, and while it has the power to terminate a permit due to earthquake risk, a spokesperson confirmed that it has never done so.
On Wednesday, the Dallas City Council is scheduled to consider changes to its natural gas drilling regulations. A key issue to be decided is whether to permit drilling fracking wells within 1,500 feet of residential property.
But local rules on fracking setbacks cannot protect against hazards — such as injection well-triggered earthquakes or horizontal drilling — that may extend across municipal boundaries. Addressing these problems requires a statewide approach.
Even one industry representative agrees that injection wells merit closer examination. “If you’re talking about wastewater disposal, regulation might be a smart path,” says Steve Everley, spokesperson for Energy In Depth, a program of the Independent Petroleum Association of America. But, he hedges, only if the risk of earthquakes is credible.
In the meantime, whether due to fracking, injection wells or something else entirely, North Texas could keep on rumbling.
For his part, Ed Specht still has another five years left on his mortgage. But with his land crumbling around him, it seems unlikely that he will gain much value from those payments. “This house won’t be here in five years,” he says.
Attorney Jordan Fletcher is a Fellow in Global Journalism at the University of Toronto’s Munk School of Global Affairs. Follow him on Twitter at @fletchjordan.