It’s about time for a review of the latest court cases involving fracking. We’ve written previously about two successful cases in Texas, and today we discuss two Texas cases that turned out differently. We also discuss an interesting case in Colorado that was dismissed, and some of the overall trends we’ve been seeing in tort and nuisance claims.

So far, the $2.9 million award by a Dallas jury to Bob and Lisa Parr of Wise County, Texas has been upheld. On September 11, Dallas County Court Judge Mark Greenberg denied Aruba Petroleum’s request for a new trial. But just 2 weeks before the original ruling in the Parr case, another Fort Worth-area landowner lost a similar lawsuit in a Tarrant County court. On April 10, the jury rejected a similar private nuisance and trespass claim in Teri Anglim v. Chesapeake Operating Inc. Interestingly, in both cases, the judges asked the juries to decide whether the defendant’s activities were abnormal and out of place in their surroundings. In both cases, the juries decided that the well operator’s activities, including fracking, were not abnormal or out of place in their surroundings. However, in the Parr case, the judge also instructed the jury to decide whether Aruba had intentionally created a private nuisance, and the jury decided answered “Yes” to this question, which became the basis for the award.

Note that it was just about 6 weeks later, on May 23, when another Tarrant County jury awarded a couple $20,000 for their private nuisance claim against Chesapeake related to the same wells for loss of use and enjoyment of their property. Samuel and Jane Crowder, represented by the same lawyer as Ms. Anglim, also claimed that Chesapeake’s operations near their home constituted a nuisance. The jury refused to find a permanent nuisance, but found that Chesapeake’s activities constituted a temporary nuisance. So, we have three different cases in the same general area with three very different outcomes. Two more cases in which Fort Worth-area landowners have asserted nuisance claims against Chesapeake are pending in Tarrant County, both filed by the same attorney who represented Ms. Anglim and the Crowders. We’ll be watching to see what happens with those cases.

More recently, on August 14, a judge dismissed a similar nuisance case in Karnes County, Texas. In Cerny v. Marathon Oil Corp., et al., District Judge Stella Saxon granted the defendants summary judgment, concluding that plaintiffs Mike and Myra Cerny could not provide sufficient evidence to prove to a jury that they were sickened and their property was damaged by the defendants’ oil and gas operations rather than other causes. The Cernys’ attorney has already filed an appeal.

Fracking rig in backyard Justin, Texas

Photo of fracking rig in backyard Justin, Texas, courtesy of Jeremy Buckingham, CC BY 2.0.

Next, we turn to Colorado and examine an older case in which an anticipatory nuisance claim was denied. On August 17, 2012, a Denver County District Court dismissed Evenson v. Antero Resources, a class action brought by residents of Battlement Mesa attempting to stop fracking in their community. The plaintiffs cited an incident in which Antero allegedly received a violation notice from state regulators for hydrocarbon odors emanating from an well pad near Battlement Mesa as well as a Health Impact Analysis prepared by the Colorado School of Public Health to support their claim that future harm could reasonably be expected to occur as a result of fracking. However, most of the plaintiffs’ allegations were not related to past events or current injuries. Regarding any stigma allegedly associated with fracking that reduced property values, the court reasoned that it was not actionable in the absence of a recognized cause of action such as trespass or nuisance. In addition, the court held that plaintiffs “cannot support tort claims until the injuries actually occur or begin to occur.”

So, what can we conclude about litigation trends based on these cases? Currently, fracking is regulated predominantly at the state level; because fracking-related litigation is still fairly new and the laws regarding fracking are rapidly evolving, it’s important to exercise caution when trying to draw conclusions. However, it is probably a good bet that arguing that oil and gas development operations are abnormal or out of place in Texas is unlikely to be successful. Proving causation is also likely to be a challenge, requiring plaintiffs to choose their alleged damages with care. It may be easier to prove loss of use and enjoyment due to fracking operations than medical claims.