Lisa Frick, our fictional Denton resident, who collected anti-fracking ordinance signatures to put on the Denton City Ballot now complains that fracking near old Texas Stadium caused earthquakes that harmed her twin sister Linda. Linda wants to sue our November fictional friend Frack Petroleum Company, contending that her Irving home was damaged by the January series of earthquakes caused by Frack’s hydraulic fracking that “felt like a semi hit the side of our house,” causing it to shake so badly it left structure cracks at least a half-inch wide. Can Lisa Frick’s sister Linda sue Frack Petroleum Company?

Answer

As the saying goes, anybody can file a lawsuit, but given the current status of Texas case law Linda probably won’t win. Scientific testimony relating earthquakes to hydraulic fracking is not widely accepted. Expert trial testimony requires reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue – it must have attracted widespread acceptance within a relevant scientific community, the Daubert standard.

The Claim

It’s not the fracking, but rather the disposal of the leftover briny water known as “flowback” that is at the center of the hubbub. Typically, millions of gallons of wastewater are trucked from the fracking site to a second well site and injected thousands of feet underground into porous rock layers. Some seismologists say the flowback injection can cause tiny “micro earthquakes” rarely felt on the surface. While recognizing that the disposal process can trigger slightly larger quakes when water is pumped near an already stressed fault, the U.S. Geological Survey reports that only a handful of the 30,000 injection wells across the country have been suspected of causing earthquakes. While research doesn’t prove all fracking causes earthquakes, it does suggest that fracking occurring near fault lines has the potential to cause them.

Possible Lawsuit Claims

Even assuming unlikely supporting scientific Daubert evidence, a party claiming property damages in Texas could not prove that it was damaged under its most probable claim – trespass. The Texas Supreme Court held that damages for drainage by hydraulic fracturing are precluded by the rule of capture – a rule that gives a mineral rights owner title to the oil and gas produced from a lawful well bottomed on the property, even if the oil and gas flowed to the well from beneath another owner’s tract. No earthquake lawsuits have been successful in Texas, only lawsuits claiming damages from exposure to the compounds in the “flowback” – benzene, toluene, ethylbenzene, xylene, and other compounds – that allegedly contaminated adjacent property.