Tuesday, November 10, 2015

Well runs dry for plaintiffs seeking to pin earthquakes on fracking activities

Last week, the Texas Railroad Commission completed a months-long review of fracking activities near the northern Texas town of Azle, and officially determined that there is not enough evidence to link fracking activities with earthquakes in the region. The review was spurred by a study released by Southern Methodist University in April of this year, which posited that high volumes of wastewater injection were the most likely cause of earthquakes occurring in Azle from late 2013 to early 2014. After the study was released, the Commission issued an order to show cause requiring fracking operators XTO and EnerVest to demonstrate why their drilling permits in the region should not be revoked.

After reviewing the study and the evidence submitted by the companies, Commission administrative hearing examiners determined that there was not enough evidence that drilling is a “likely contribution” to the earthquakes. The examiners found that the university’s study showed only a weak correlation between injection and seismic activity, and they identified a number of flaws in its methodology. In the end, they determined that the study’s model “was not sufficient to establish” a link between the fracking activity and the earthquakes that have been observed. Upon review of these findings, The Commission formally adopted the examiners’ conclusion.

This Commission’s determination helps illustrate the high bar plaintiffs would face attempting to prove that fracking activities caused earthquakes. While plaintiffs might try to point to broader patterns of an increase in seismic activity in recent years, they may be unable to meet the burden of showing by even a preponderance of the evidence that a given earthquake was caused by the fracking activities of a specific defendant.

Weil Gotshal & Manges LLP 

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