Hold landowners liable for damages from any fracking

July 9, 2012 | By Robert Emmet Hernan

If you lease your land for fracking, you should pay for any damages to your neighbors’ water supply and any injuries to their health.

The controversy around fracking centers on risks to surface and groundwater contamination, air pollution, greenhouse gas (GHG) emissions, huge truck traffic (estimated as many as 6,790 one-way truck trips for each well in New York), and deterioration of quality of life, including potential health risks. Recent studies from researchers at Duke University, analyzing data in Pennsylvania and New York, and from EPA, analyzing data in Wyoming, reinforce the concerns about drinking water contamination from fracking.

The issue remains: who will be held responsible for any damages in areas where fracking is allowed to go forward, or for any personal injuries from exposure to toxic chemicals. Certainly the gas companies should be responsible and should pay for any damages or injuries, and any other adverse consequence of their fracking.

But what about owners of land who receive a fee and/or royalty payments for leasing their gas rights to the gas companies or for granting access to their land if they do not own the mineral rights below the land? Much of the fracking in New York and Ireland would take place in rural areas which are primarily farming communities with some recreational and tourist activities and with some holiday homes. Much sympathy deservedly is given to the farm owners in these areas as farming is a demanding occupation and jobs outside farming, often necessary to supplement incomes, are few and far between, and getting harder to find. The upfront payments and royalties are very welcome to those whose land has natural gas under the surface, and some of that money gets spread around the local communities.

For such landowners, all the risks to water supplies, exposure of families to toxic substances, and destruction of quality of life will be weighed against the new-found source of wealth. Some will take the wealth, some will not. The problem is that those who take the wealth have chosen to take the risks. Those who choose not to allow fracking on their land are stuck with the risks imposed on them by their neighbors. If a landowner chooses not to allow fracking, and her neighbor does, any contamination on the neighbor’s land may well destroy a water source common to them both, and to many in the area. Any air pollution from the risk taker will adversely impact neighbors who chose not to take the risks; any truck traffic will impinge on the whole community, many of whom are nor sharing in the new-found wealth.

So perhaps it is only fair that landowners who lease their gas rights or grant access for fracking should be held responsible for any damages, along with the gas companies. Ancient laws of nuisance provide for such a result when someone conducts a dangerous operation on his/her land. But nuisance cases take a lot of time and money to prosecute.

We need a new law that holds both the companies and landowners strictly liable (without a claimant having to prove that there was any negligence), and jointly and severally liable (anyone involved is equally responsible) for any and all damages from fracking. The United States Superfund law for disposal of hazardous substances and the Oil Pollution Law are useful models. The former provided the legal basis for the state and federal governments to recover the costs of cleaning up Love Canal, and the latter provided the legal basis for the cleanup of the BP Gulf oil spill.

Here’s an excerpt from a recent Blog post from Tom Wilbur, a journalist and author of Under the Surface: Fracking, Fortunes and the Fate of the Marcellus Shale, focusing on the same issue of one landowner profiting and causing loss for the neighbors:

In my mind, the debate should not be about whether drilling causes flaming faucets and explosions that are already a matter of record (even with all the reporting gaps). The public needs to get beyond this argument to judge whether the merits of full-scale natural gas development over the next generation will outweigh the drawbacks. We are aware of the benefits as spelled out by industry proponents – cheap fuel, energy independence, jobs, an alternative to dirty coal. Now we need a complete and honest discussion about the impacts of shale gas development on environment and health. How to deal with methane migration is an overriding question. It’s one thing to have a property owner willingly and knowingly accept manageable risks associated with gas drilling on his property. It’s another to have an uninformed neighboring party suffer the consequences. How to deal with wastewater is another. It’s hard to determine future impacts when we don’t have the tools to comprehensively and conclusively gauge current and past problems. So that brings us back to transparency and disclosure. That’s where it must start. [Emphasis added]

The entire Blog post, “Shale gas debate grows more urgent in New York state – The Sky is Pink, Dot.earth raise profile of issues,” is worthwhile to read at tomwilber.blogspot.ie/2012/07/shale-gas-debate-grows-more-urgent-in.html

What do you think? Would this be fair?

 Robert Emmet Hernan