GUTHRIE, Okla. (Legal Newsline) – The fracking industry is defending itself against a class action lawsuit blaming it for earthquakes in Oklahoma.
Class action attorneys are targeting a group of natural gas companies in an Oklahoma state court, having successfully argued that the case doesn't belong in federal court. Chesapeake Operating and Special Energy are two of the companies that recently filed their motions to dismiss in Logan County District Court.
The plaintiffs are claiming the chemicals disposed of by the defendants during the fracking process have increased the risk of earthquakes in certain parts of the state. The chemicals allegedly included saltwater that was produced during oil and gas operations. They alleged there were nine earthquake clusters between 2014 and 2017.
Chesapeake had previously filed a motion to dismiss when the lawsuit was in federal court Dec. 18, but the case was remanded to state court Dec. 28, so the company refiled.
Several of the defendants have also filed motions to stay the action pending the outcome of a lawsuit filed in the U.S. District Court for the Western District of Oklahoma involving Chaparral Energy.
Chesapeake wrote that if the court were to grant the pending motions to stay, the motions to dismiss would be stayed too.
In its motion to dismiss, Chesapeake wrote that Oklahoma law requires the plaintiffs to demonstrate causation, which it believes they have failed to do.
Chesapeake argues that the plaintiffs made vague and conclusory allegations but that there was no causal link between the alleged damages and the disposal wells.
The plaintiffs failed to identify any particular earthquake clusters that purportedly caused damage to their or any other putative class member's home, according to the motion.
Chesapeake also claims that Lisa Griggs, one of the plaintiffs, is not a homeowner in Logan County and cannot suffer any damages without an ownership interest, which it claims means she is not a properly named plaintiff and not a member of the putative class.
Special Energy wrote in its January notice that it had also previously filed a motion to dismiss on Dec. 18, when the case was still in federal court.
Special Energy, along with EastOK Pipeline LLC, filed a motion to stay the action pending the outcome of Lisa West, et al. v. Chaparral Energy LLC in the U.S District Court for the Western District of Oklahoma.
Griggs isn't the only plaintiff to take on the fracking industry. A lawsuit by 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 last year.
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.”
In its motion to dismiss Griggs' case, Special Energy said the plaintiffs have failed to state a claim for which relief can be granted, as a complaint must do more than merely raise the possibility of a claim.
Special Energy wrote that the complaint was deficient in other respects that concern market share liability.
The strict liability, nuisance and trespassing claims should be dismissed, according to the motion.
Special Energy also wrote that the Logan County court lacks subject matter jurisdiction, as neither the Legislature nor the Oklahoma Corporation Commission has imposed responsibility for seismicity on operators of injection wells.
Chesapeake is represented by Phillip G. Whaley and Matthew C. Kane of Ryan Whaley Coldiron Jantzen Peter & Webber in Oklahoma City.
Special Energy is represented by Michael J. McDaniel of Coffey, Senger & McDaniel of Tulsa, Okla.
In addition to Federman & Sherwood, three other firms are representing Marler and Griggs. They are Weitz & Luxenberg of New York City, Poynter Law Group and Steel, Wright, Gray & Hutchinson.
Logan County District Court in Oklahoma case number CJ-2017-174