Modem hydraulic fracturing technology and horizontal drilling have made it possible and profitable for oil and gas companies to extract natural gas from underground shale and coal formations that would otherwise be inaccessible. Horizontal drilling, in particular, has enabled oil and gas companies to turn under-producing reservoirs into profitable extractive sites. However, despite its technological achievements and economic efficiencies, hydraulic fracturing is not without controversy. One of the main concerns is the potential for groundwater contamination. While experts disagree, the preponderance of evidence suggests that hydraulic fracturing can and has resulted in the unintended toxic contamination of nearby groundwater sources. In the United States, hydraulic fracturing litigation is on the rise, and numerous lawsuits have been filed by landowners against oil and gas companies and regulatory agencies in negligence, nuisance, trespass and the rule in Rylands v. Fletcher for the alleged contamination of their groundwater. In Canada, only one such lawsuit has been filed: Ernst v. EnCana Corp. Common law remedies have proved to be unattainable for most plaintiffs in these cases. The uncertain underground geological consequences of hydraulic fracturing make establishing factual causation a significant legal hurdle. A strict regulatory system that imposes a presumption of liability on oil and gas developers is necessary to encourage safe extractive practices and protect the legal interests of landowners.
Hydraulic Fracturing Litigation: The Case of Jessica Ernst & the Problem of Factual Causation,
42 Can.-U.S. L.J.
Available at: https://scholarlycommons.law.case.edu/cuslj/vol42/iss1/11