What a Fracking Nuisance

Two percent of earthquakes are linked to hydraulic fracturing operations; these manmade “quakes” have been devastating to homeowners across the country since they induce unsafe conditions and expensive property damage. Fracking is the process of using pressurized water with chemicals to create fractures in underground rock layers to extract oil and gas. Fracking fluid is a combination of water and chemicals used to perform the fracturing, once finished this fracking fluid has to be disposed of and is often injected deep into the earth, which is known to induce “quakes.”

Residents around Greenbrier, Arkansas, were hit with a swarm of more than 1,000 minor earthquakes between 2010 and 2011 induced by the disposal of fracking fluid, the largest being a 4.7 magnitude earthquake. Fourteen homeowners impacted by the “quakes” sued Chesapeake Operating Inc. in 2014, seeking financial compensation for damage caused by the “quakes.” Portions of their home’s foundation were damaged and an overall loss of property value occurred from the “quakes.” 

To resolve this dispute, it is helpful to look at the doctrine of nuisance. In the case Puritan Holding Co. v. Holloschitz, a homeowner could not afford to maintain their property and had a dilapidated home in New York City depreciating property value of the nearby buildings. The court stated, “nuisance…arises from the unreasonable, unwarrantable, or unlawful use…which produces such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage.” The abandoned home was a nuisance since it caused a neighboring apartment building to lose property value which was seen as a material hurt. 

The Puritan Holding Co. gives perspective on the Greenbrier homeowners’ hardship, since the loss of property value can be seen as a material hurt. Applying the rule in Puritan Holding Co. for material hurt and unreasonableness, an unreasonable use of property that induces a material hurt or annoyance is a nuisance. Chesapeake Operating Inc.’s actions were unreasonable and induced a material hurt that created a nuisance for the Greenbrier homeowners. Chesapeake Operating Inc.’s use of its property to dispose of fracking fluid by injecting deep below ground led to an unreasonable amount of “quakes.” The “quakes” caused damage and the financial burden of having to make repairs to ensure the homes were structurally sound created a material hurt. This act by Chesapeake Operating Inc. was unreasonable as it caused a material hurt that impacted the Greenbrier homeowners’ right to enjoy their homes. Chesapeake Operating Inc. could argue that it is unreasonable to find them responsible for nuisance since they were well within their rights to inject the fracking fluid. It was not foreseeable that the “quakes” would occur at such a severe rate and they should not be responsible for the material hurt. 

It’s difficult to tell how a court would rule on these facts. When the nuisance doctrine doesn’t clearly demonstrate which party should receive relief, policy can be a helpful aid. Efficient allocation can be used by Chesapeake Operating Inc. to demonstrate how they were using their land in the most economically beneficial way for society. Human flourishing can be argued on the Greenbrier homeowners’ behalf since they deserve to live in a safe and secure environment where they are not concerned about their homes being destroyed by manmade “quakes.” The legislature should create a law that protects homeowners from different nuisances (like “quakes”) by regulating how the fracking companies engage in production and disposal of waste materials. Ensuring that the mistakes in Greenbrier are not repeated. Even though there is an interest in increasing our natural gas production, the homeowners are disadvantaged since they cannot control the fracking companies. We must prioritize the protection of homeowners’ rights to enjoy their property for the overall human benefit and flourishing. 

Savannah Johns is a law student at the American University Washington College of Law with an interest in studying environmental and intellectual property law.

Image: Ostroff Law, Fracking Site in Warren Center, PA 08.