New Decisions -- Pleading Requirements for Complaints Alleging Contamination from Hydraulic Fracturing by H. Victor Thomas


The development of natural gas wells using hydraulic fracturing technology—fracking — has grown exponentially and increased natural gas reserves to record levels. Hydraulic fracturing requires the discharge of significant volumes of hydraulic fracturing fluids into a geologic formation under extreme pressure in order to dislodge and discharge “trapped” natural gas. The composition of “fracking fluid” may include chemicals that, depending on the level of exposure, are deemed to be potentially toxic.

The increased production from such drilling has helped to drive U.S. natural gas prices to historic lows, making profit margins thin or non-existent. Profits have been jeopardized further by the difficult-to-estimate costs of defending an escalating number of lawsuits alleging contamination from such drilling.

During litigation in the U.S., it is typical that before incurring huge costs of discovery, a defendant may move to dismiss an action due to the plaintiff’s failure to comply with state or federal pleading requirements.

This article discusses two recent federal decisions regarding such motions to dismiss complaints alleging fracking contamination, Tucker and Fiorentino. These decisions may shed light as to how other courts are likely to apply pleading requirements that may require dismissal at an early stage. They are applicable to estimating defense costs for fracking contamination litigation.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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