OKLAHOMA CITY (Legal Newsline) - A lawsuit that blames the fracking industry for increased earthquake activity in Oklahoma is back.
Class action attorneys who are targeting a group of natural gas companies will now ask a federal court to send the case back to the state court in which it was filed. It was because their previous case would have been heard in federal court that they dropped it more than a year ago.
“By disposing of fracking wastewater deep into the earth, Defendants introduced contaminants into the natural environment that caused an adverse change to it in the form of unnatural seismic activity,” says the second complaint of Lisa Griggs and April Marler, filed in August in Logan County District Court.
“In other words, due to Defendants’ pollution of the environment, they caused the earthquakes at issue in this case.”
This lawsuit is one of a few making similar allegations against the fracking industry:
-Sandra Lagra’s lawsuit was the subject of a 2015 Oklahoma Supreme Court decision that allowed her personal injury claim to proceed in Lincoln County District Court rather than before the Corporation Commission;
-Jennifer Cooper’s lawsuit is similarly still pending in Lincoln County; and
-The Sierra Club and Public Justice attempted to use the Resource Conservation and Recovering Act in a way it had never been used before, but U.S. District Judge Stephen Friot dismissed the case in April.
The two groups had alleged fracking caused the amount of earthquakes in the state to skyrocket – from 167 in 2009 to 5,838 in 2015. But Friot dismissed the case under a doctrine that allows the court to pass on deciding an issue when a state court has greater expertise in the area.
“(I)t is plain that the Oklahoma Corporation Commission has brought to bear a level of technical expertise that this court could not hope to match,” Friot wrote.
“The challenge of determining what it will take to meaningfully reduce seismic activity in and near the producing areas of Oklahoma is not an exact science, but it is no longer one of the black arts.
“This court is ill-equipped to outperform the Oklahoma Corporation Commission in advancing that science and putting the growing body of technical knowledge to work in the service of rational regulation.”
Fracking, which extracts trapped natural gas from underground shale, uses and creates an excess of water, some of which contains toxic chemicals that must be disposed of and stored underground.
Griggs and Marler allege the process of fracking and the water it produces have increased the pore pressure within underground faults, causing them to slip.
Defendants – which include New Dominion, Chesapeake Operating, Devon Energy and Kirkpatrick Oil – previously successfully argued the issue belongs in federal court under the Class Action Fairness Act. That law gives federal courts jurisdiction over class actions in which more than $5 million is at issue.
Chesapeake removed the most recent version of the lawsuit to Oklahoma federal court on Sept. 1, again under CAFA. It also says since Gastar is organized in Delaware and the plaintiffs reside in Oklahoma, there exists diversity that grants the federal court jurisdiction.
Attorney William Federman, of Federman & Sherwood in Oklahoma City, says Gastar was listed on the first page of the complaint as an error and want to amend it. The company was not named in the body of the complaint.
Federman and his legal team also want to amend the complaint to include allegations that earthquakes on July 14 and Aug. 2 were caused by fracking.
After it was determined that Marler and Griggs’ first case would be heard in federal court, Federman and his colleagues voluntarily dismissed it and waited the requisite one year before refiling.
In addition to Federman, three firms are representing Marler and Griggs. They are Weitz & Luxenberg of New York City and Poynter Law Group and Steel, Wright, Gray & Hutchinson of Little Rock.
From Legal Newsline: Reach editor John O’Brien at firstname.lastname@example.org.