By: James Patrick Logan
On November 5, 2011, Sandra Ladra was in her home in Prague, Oklahoma, with her family when the walls and floor began to shake. A 5.0 magnitude earthquake had struck nearby, with aftershocks and subsequent earthquakes up to magnitude 5.6 (the Prague earthquake). The earthquake severely damaged several buildings, injured people, and buckled pavement. The Ladra’s were not spared. The earthquake caused serious fractures in their home’s two-story chimney. As the chimney broke apart, large chunks of rock fell to the floor. The falling rock struck Ladra’s legs, seriously injuring her lower body. She needed immediate medical treatment, and now claims personal injury damages exceeding $75,000.
Ladra filed the suit in the District Court of Lincoln County. In her action, Ladra claimed that hydraulic fracturing and the use of injection wells caused the earthquake that resulted in her injuries. She claimed that the New Dominion, LLC, Spess Oil Company, and various John Doe defendants were liable for her injuries because their operation of injection wells was the proximate cause of her injuries.
On October 16, 2014, the District Court dismissed the case, stating that exclusive jurisdiction on matter concerning oil and gas operations belonged not to trial courts, but to the Oklahoma Corporation Commission (a state regulatory agency). Ladra filed a Petition in Error with the Supreme Court of Oklahoma, seeking review of the District Court’s order. The Supreme Court of Oklahoma proceeded to overrule the lower court, holding that jurisdiction over an action to recover damages from anthropogenic earthquakes belongs in a district court. This was the first case of its kind, with Oklahoma’s Supreme Court being the first higher court of any state to implicitly grant that an action to recover damages from a human-caused earthquake may proceed. This case of first impression will undoubtedly pave the way for future actions in states of high fracking and seismic activity. However, there remains the question, can a tort claim against natural gas companies for purportedly anthropogenically caused earthquakes succeed?
The only potential enlightenment on this issue comes from a few previous, albeit distantly related, cases. For example, in Hiser v. XTO Energy, a jury initially ruled in favor of a plaintiff seeking damages for, among other things, damaging “vibrations” to her home. However, this ruling was later overturned because the jury had used outside information relating to fracking to come to their verdict (fracking had not been mentioned in the case, itself, and was not strictly at issue). Other fracking-related cases typically allege contamination of water supply, nuisance claims, and land use violations, but not damage from earthquakes. Given the lack of direction from other courts on how to handle this case, the decision in Ladra v. New Dominion, LLC, will a novel one.
Fracking and Earthquakes in Oklahoma
Though the state is not as well known for its natural gas deposits as are Pennsylvania with the Marcellus Shale and Texas with the Barnett Shale, Oklahoma contains numerous shale formations that yield substantial quantities of natural gas. In fact, the first instances of massive hydraulic fracturing in the United States occurred in southern Oklahoma in 1968.
The primary means of extracting natural gas from these shale formations is the unconventional drilling method of hydraulic fracturing. Fracking consists of drilling a wellbore vertically down into a rock formation, then turning and drilling horizontally through the rock. The wellbore is then filled with a pressurized liquid that creates, or expands existing, fissures within the rock to release natural gas, which is then recovered for use as an energy resource. Massive amounts of wastewater are leftover from the fracking process, often containing salts, chemicals, heavy metals, and radioactive material. Though some of this wastewater can be reused, much of it must be disposed of, and injecting the waste back into rock formations deep underground is often the primary means of said disposal.
The precise relationship between fracking activities and earthquakes is unresolved, and explanations remain theoretical, but numerous geologists contend that added pore pressure from the injected water, in conjunction with rock fracturing caused by that water, can “reduce forces acting to keep faults locked and trigger [earthquakes].”
Currently, three formations form the basis for the fracking industry in Oklahoma: the Anadarko, Granite Walsh, and Woodford. Combined, these lie beneath the majority of the state of Oklahoma, subjecting much of the state to natural gas exploration in the last decade or so. As a result, large parts of the state, once considered geologically stable, now experience far more, and far stronger, earthquakes than they have in the past.
In her claim, Ladra filed two counts against the defendant hydraulic fracturing companies. The first is one of absolute liability, wherein she states:
Defendants’ actions described above are ultra-hazardous activities that necessarily involve a risk of serious harm to a person that cannot be eliminated by the exercise of the utmost care and is not a matter of common usage. As a direct and proximate result of Defendants’ ultra-hazardous activities, plaintiff sustained personal injuries, to which Defendants are strictly liable.
The second count is one of negligence:
The Defendants owed a duty to Plaintiff to use ordinary care and not to operate or maintain their injection wells in such a way as to cause or contribute to seismic activity. Defendants, experienced in these operations, were well aware of the connection between injection wells and seismic activity, and acted in disregard of these facts. As a direct and proximate result of these facts, omissions, and fault of the Defendants, the Plaintiff suffered injuries reasonably foreseeable to the Defendants.
Courts typically have not held that fracking is an ultra-hazardous activity such that absolute liability would apply, especially with regard to its supposed potential to induce earthquakes. Furthermore, there is little to no guidance on whether a company may be held negligent for injecting fluids in such a manner as to cause earthquakes. Accordingly, neither claim has a particularly high likelihood of success. However, the biggest question in each claim is whether the element of causation can be met.
The showing of a causal link between fracking and these earthquakes would be of particular significance for Oklahoma, as it has seen a greater increase in the incidence and magnitude of earthquakes in the last decade than any other state in the continental U.S. Though there is not yet a complete consensus within the scientific community, with the publication of numerous new studies over the last several years, there is a prevalent and growing belief that fracking and earthquakes are indeed related.
Earthquakes are typically caused by the shifting of Earth’s tectonic plates, specifically when the forces on either side of a fault (a planar fracture in the rock comprising the earth’s surface) grow too large and cause the land on either side of the fault to “slip,” or slide along or past each other. In addition to this natural phenomenon, earthquakes can also be caused by human activity, such as the retaining of massive amounts of water in dams, mining coal, drilling for oil, and, perhaps, operating fracking rigs and injection wells. Thus, while earthquakes were previously thought of solely as acts of God, a greater increase in the understanding of their causes over the last several decades has revealed that that is not always the case.
A 2014 study, based in part on the Prague earthquake, links four of Oklahoma’s most prolific injection wells to a cluster of 2,547 small earthquakes. The scientists who authored the paper state that the increase in Oklahoman earthquakes is due to the disturbance to rock formations caused by fracking and the disposal of wastewater in injection wells. And while previous studies have failed to account for the much larger magnitude earthquakes that have occurred in recent years (early models predicted fracking-induced earthquakes would not exceed a magnitude of 2.0), this study provides an explanation for how fracking results in damaging earthquakes of significant magnitude:
We view the expanding Jones earthquake swarm as a response to regionally increased pore pressure from fluids primarily injected at the SE OKC wells. As the pressure perturbation expanded and encountered faults at various orientations, critically stressed, optimally oriented faults are expected to rupture first. Additional faults at near-optimal orientations may rupture after further pressure increase. As fluid pressure continues to propagate away from the wells and disturbs a larger and larger volume, the probability increases that fluid pressure will encounter a larger fault and induce a larger-magnitude earthquake.
In laymen’s terms, the added stress and fissures caused by the injection of wastewater into these wells increases the pressure of the liquid in the rock formation. This, in turn, lubricates nearby faults in the rock, making them more likely to succumb to tectonic stress and slip. As fluid pressure in the rock continues to build and these minor slips propagate away from the original injection site, they are more likely to encounter and weaken a larger fault and contribute to a much greater slip. That slip releases potential energy stored on either side of the fault and produces a significant, and greater than expected, earthquake.
The study not only accounts for the unexpected increase in the magnitude of earthquakes, but also explains the increase in frequency in some areas but not others:
[T]he steep rise in earthquakes in Oklahoma, USA, is likely caused by fluid migration from wastewater disposal wells. Twenty percent of the earthquakes in the central United States could be attributed to just four of the wells. Injected fluids in high-volume wells triggered earthquakes over 30 km away…. The absence of earthquakes in regions above the critical pressure threshold may result from either a lack of faults or lack of well-oriented, critically stressed faults.
The above study is only a sampling of the increased understanding of how fracking and seismicity interact, a connection that has been theorized for decades, but only recently supported with intense modeling based on detailed datasets rather than just demonstrations of correlations between earthquakes and certain activities. As science progresses, understanding of this relationship will only increase.
There remain many questions surrounding the Ladra case and earthquake-related torts as a whole. Is fracking/wastewater injection abnormally dangerous? Could these earthquakes affect the vulnerability of groundwater drinking water supplies? Can defendants survive personal injury claims by asserting that the tectonic alignment itself is an Act of God, by claiming that there is no proof that any individual well caused the damage, or by arguing that the causal chain is too far stretched- a la Palsgraff? Perhaps, but the fact remains that fracking and wastewater disposal are both massive aspects of America’s energy scheme, and it seems that seismic activity and the actions of injection well operators are indeed related. Depending on the outcome of Ladra and an increasing understanding of the science of induced seismicity, natural gas companies may soon find themselves liable to entire towns struck by earthquakes. Even if Ladra does not succeed in her claim, the floodgate to similar claims has likely been opened, and this case will surely shake up the industry.
 See Magnitude 5.6 – Oklahoma: Earthquake Summary, USGS (Nov. 6, 2011), http://earthquake.usgs.gov/earthquakes/eqinthenews/2011/usb0006klz/index.php#summary (providing additional information on the earthquake central to this case. The discrepancy between magnitudes provided is due to the relative strength of the earthquake at difference distances from its epicenter, as well as whether the reported measurement is of an aftershock or the initial earthquake. All measured seismic events exceed 4.8, however.).
 Ladra v. New Dominion, LLC, 353 P.3d 529, 532 (Okla. 2015)
 Hiser v. XTO Energy, 2013 U.S. Dist. WL 5467186, at *3 (E.D. Ark. 2013).
 See Boone & Robinson, supra note 37, at 74-75.
 Alex Prud’homme, Hydrofracking 41 (2013).
 Carl T. Montgomery & Michael B. Smith, Hydraulic Fracturing: History of an Enduring Technology, 12 J. Petroleum Tech. 26-41 (2012).
 Department of Energy Office of Fossil Energy and National Energy Technology Laboratory, Official Report: Modern Shale Gas Development in the United States 56-66 (2012).
 Class II Oil and Gas Related Injection Wells, EPA, http://www.epa.gov/uic/class-ii-oil-and-gas-related-injection-wells (last updated Oct. 8, 2015) (an estimated 2 billion gallons of such wastewater are injected in the United States every day, mostly in Texas, California, Oklahoma, and Kansas). Much of this water is not solely leftover from liquid that was actually injected. Rather, a large amount of this leftover wastewater was already underground and is retrieved along with oil and natural gas. The product is then “dewatered” and captured, leaving as much as nine times as much residual water left over, which is then disposed of via injection wells. Rivka Galchen, Weather Underground: The Arrival of Man-Made Earthquakes, New Yorker, Apr. 13, 2015, http://www.newyorker.com/magazine/2015/04/13/weather-underground.
 Valeria J. Brown, Radionuclides in Fracking Wastewater: Managing a Toxic Blend, 122 Envtl. Health Persp. A50, A50-A51 (2014); Rebecca Hammer & Jeanne Van Briesen, In Fracking’s Wake: New Rules Are Needed to Protect Our Helath and Environment from Contaminated Wastewater 23 (NRDC, 2012).
 Kelly O. Maloney & David A. Yoxtheimer, Production and Disposal of Waste Materials from Gas and Oil Extraction from the Marcellus Shale Play in Pennsylvania, 14 Envtl. Prac. 278, 278 (2012).
 Eric Hand, Injection Wells Blamed in Oklahoma Earthquakes, 345 Science 13 (2014).
 Prud’homme, supra note 6, at 42-46.
 See Gas Production in Conventional Fields, Lower 48 States, Energy Information Administration (Apr. 8, 2009), http://www.eia.gov/oil_gas/rpd/conventional_gas.pdf.
 A. McGarr et al., Coping with Earthquakes Induced by Fluid Injection, 347 Science, 830, 830 (2015).
 Justin L. Rubinstein & Alireza Babaie Mahani, Myths and Facts on Wastewater Injection, Hydraulic Fracturing, Enhanced Oil Recovery, and Induced Seismicity, 86 Seismological Res. Letters 1060, 1061 (2015). Up until 2008, Oklahoma experienced roughly one to two earthquakes of magnitude 3.0 or greater each year. Galchen, supra note 10. That number increased dramatically over the next several years, with Oklahoma experiencing 890 such earthquakes in 2015. United States Geological Survey, USGS-NEIC ComCat & Okla. Geological Survey (2016), http://earthquake.usgs.gov/earthquakes/states/oklahoma/images/OklahomaEQsBarGraph.png.
 Petition for the Plaintiff at 5, Ladra v. New Dominion, LLC (Dist. Ct. Okla. 2014) (No. C3-2014-115).
 Richard A. Oppel & Michael Wines, Industry Blamed as Earthquakes Jolt Oklahoma, N.Y. Times, Apr. 4, 2015, at A1; William L. Ellsworth, Injection-Induced Earthquakes, 341 Science 6142 (2013) (showing the dramatic rise in seismicity in the past several years compared to historic rates).
 See, e.g., Austin Holland, Examination of Possibly Induced Seismicity from Hydraulic Fracturing in the Eola Field, Garvin County, Oklahoma (Oklahoma Geological Survey, 2011).
 See Earthquakes Overview, Pacific Northwest Seismic Network, http://pnsn.org/outreach/about-earthquakes (last visited Mar. 6th, 2016).
 See Pradeeo Talwani & Steve Acree, Pore Pressure Diffusion and the Mechanism of Reservoir-Induced Seismicity, 122 Pure and Applied Geophysics 947 (1984) (outlining the manner in which the storage of large amounts of water in reservoirs can induce earthquakes); see also S. K. Guha, Induced Earthquakes: Mining Induced Seismicity (Springer, 2000) (describing the effect that mineral mining can have on area seismicity); see also Mark D. Zobak & Jens C. Zinke, Production-Induced Normal Faulting in the Valhall and Ekofisk Oil Fields, The Mechanism of Induced Seismicity 403-20 (Cezar I. Trifu ed., 2002) (describing how more traditional oil drilling can induce seismic activity); see also Susan E. Hough & Morgan Page, A Century of Induced Earthquakes in Oklahoma?, 105 Bull. of the Seismological Soc’y of Am. 2863 (2015) (describing the relationship between fracking activity, particularly with respect to wastewater disposal in injection wells, and seismic activity).
 See 1 Am. Jur. 2d Act of God § 1 (2015).
 K. M. Keranen et al., Sharp Increase in Central Oklahoma Seismicity Since 2008 Induced by Massive Wastewater Injection, 345 Science 448 (2014).
 See F. Rall Walsh III & Mark D. Zoback, Oklahoma’s Recent Earthquakes and Saltwater Disposal, Sci. Advances 3 (June 18, 2015), http://advances.sciencemag.org/content/advances/1/5/e1500195.full.pdf.
 Keranen, et al., supra note 63, at 450-51.
 See generally William Ellsworth, Jessica Robertson, & Christopher Hook, Science Features: Man-Made Earthquakes Update, USGS (Jan. 17, 2014, 1:00 PM), http://www.usgs.gov/blogs/features/usgs_top_story/man-made-earthquakes/.
 Keranen, et al., supra note 63, at 448-50 (Editor’s abstract and text from article itself).
 See, e.g., K. M. Keranen, et al., Potentially Induced Earthquakes in Oklahoma, USA: Links Between Wastewater Injection and the 2011 Mw 5.7 Earthquake Sequence, Geology (Mar. 26, 2013), http://geology.gsapubs.org/content/early/2013/03/26/G34045.1.abstract; Danielle F. Summy, et al., Observations of Static Coulomb Stress Triggering of the November 2011 M5.7 Oklahoma Earthquake Sequence, 119 J. of Geophysical Res. 1904 (2014); D. E. McNamara, Efforts to Monitor and Characterize the Recent Increasing Seismicity in Central Oklahoma, 34 Geoscience World: The Leading Edge 628 (2015).