Hydraulic Fracturing (Fracking): 

Litigation Trends

Duke K. McCall, III

Bingham McCutchen LLP

2020 K Street

Washington, D.C. 20006

duke.mccall@bingham.com
Discussion Topics

• Fracking in the United States

• Fracking Litigation

• Factors Driving Fracking Litigation

• Fracking Litigation to Date

• Litigation Trends

• Questions

2
Use of Fracking

• Fracking has been used for over 60 years in the United States in 

traditional, vertical wells in confined reservoirs.

• An estimated 1 million wells have been fracked, approximately 

35,000 annually.

• Recent advancements in fracking and horizontal drilling in shale 

formations have opened up new areas of the US to oil and gas 

production.

• If current trends continue, the United States could, as a result of 

increased production from shale deposits through fracking, become 

an exporter of liquefied natural gas (LNG) as soon as 2016.

3
The Fracking Process

4

Conventional Wells v. Horizontal Wells in Shale
Shale Formations in the United States

5
Factors Driving Fracking Litigation:

Location

6

• Fracking has opened up areas 

for production that have not 

previously seen oil and gas 

operations at the current scale, if 

at all.

• The proximity of the Marcellus 

Shale, in particular, to the largest 

natural gas markets in the United 

States has helped fuel demand.

• Increased exploration and 

production in areas not 

accustomed to oil and gas 

operations has given rise to 

conflicts and increased litigation 

risks.
7
Factors Driving Fracking Litigation: 

Public Perception

• Concerns include potential:

• Contamination of drinking water

• Surface water and soil impacts 

from fluid leaks and spills

• Induced seismicity (earthquakes)

• Vibration and subsidence

• Air emissions, including releases 

of greenhouse gasses that could 

contribute to global warming

• Increased truck traffic and diesel 

emissions

8
Factors Driving Fracking Litigation: 

Media Attention

9

A Factor Driving Future Fracking Litigation: 

Water Scarcity

11

• Fracking in most shale formations 

requires substantial water.

• Water used in fracking can 

sometimes be re-used in wells but 

generally is not re-used for other 

purposes.

• Some shale formations are located in 

areas of limited water supply where 

water allocations are already in 

dispute.

• Disputes between oil and gas 

producers, agricultural interests and 

other water consumers are expected 

to grow as fracking increases.
Fracking

Litigation to Date

• Since 2009, more than 200 “fracking-related” 

lawsuits have been filed in state and federal 

courts:

• Dozens of lawsuits alleging property damage (from 

fracking itself or other aspects of drilling operations 

utilizing fracking)

• Dozens more alleging personal injuries or seeking 

medical monitoring

• Several lawsuits alleging induced seismic activity

• More than 50 lawsuits against agencies challenging 

a perceived lack of regulation or enforcement

• More than a dozen enforcement actions against 

drillers for alleged violations

• Lease disputes

• FOIA litigation

12
Fracking

Litigation Trends

• Few lawsuits alleging property damage and 

personal injury have been fully adjudicated

• Trends – Traditional Tort Procedures Apply

• Strudley v. Antero Resources Corp., No. 12CA1251, 

Colo. Ct. App. July 3, 2013) – Colorado Court of Appeals 

reversed a trial court dismissal of personal injury and 

property damages claims under a “Lone Pine” order that 

required a prima facie showing of causation. The Court of 

Appeals held that Lone Pine orders are not permitted 

under Colorado law and would not have been appropriate 

in this case in any event.

• Trends – Potential for Jury Appeal

• Parr et al. v. Aruba Petroleum Inc., No. 11-01650-E, 

(Dall. Cnty, Tex. Apr. 2014) – Texas jury awarded family 

$2.925 million for personal injuries and property damage in 

a lawsuit alleging that wells operated on adjacent 

properties by Aruba Petroleum created a private nuisance.

13
Fracking

Litigation Trends (Cont.)

• Trends – Litigation to Force Disclosure

• Powder River Basin Resource Council v. Wyoming Oil & 

Gas Conserv. Com’n, 320 P.3d 222 (Wy. Mar. 14, 2014) -- 

Wyoming Supreme Court ordered district court to reconsider 

ruling that composition of fracking fluids was a trade secret 

exempt from public disclosure.

• Trends – Litigation to Force Regulation

• Center for Biological Diversity v. California Dept. of 

Conserv., No. RG12-652054 (Sup. Ct. Jan. 29, 2014) – Trial 

court dismissed claims of environmental groups against the 

California Division of Oil, Gas and Geothermal Resources 

(DOGGR) alleging that DOGGR violated the California 

Environmental Quality Act (CEQA) by allowing fracking without 

environmental impact reports. The court concluded that SB-4 

directed DOGGR to authorize fracking authorize fracking 

pending issuance of new regulations in 2015.

14
Questions

15
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Fracking Litigation Reference List

Class Action Lawsuits to Date Include:

Arkansas

• Ginardi v. Frontier Gas Services, Inc. (No. 4:11-CV0420, E.D. Ark.) – Negligence, nuisance, trespass and 

strict liability claims for alleged soil and groundwater 

contamination from natural gas compressor stations (filed 

2011, plaintiffs’ motion for summary judgment denied as 

premature, settled 2012)

• Hearn v. BHP Billiton Petroleum (Arkansas) Inc. (No. 

4:11-CV-00474, E.D. Ark.) – Property damage claims 

alleging that injection wells for the disposal of used fracking 

fluids triggered earthquakes in north-central Arkansas (filed 

2011, consolidated with other cases, pending)

• Hill, et al. v. Southwestern Energy Company (No. 4:12-

CV-00500, E.D Ark.) – Trespass claims for subsurface 

disposal of used fracking fluids in injection wells (filed 

2011, pending)

• Scoggin v. Southwestern Energy Company (No. 4:12-

CV-763, E.D. Ark.) – Negligence, nuisance, trespass and 

strict liability claims for alleged personal injury and property 

damage from groundwater contamination, noise, vibration 

and air emissions from fracking and related trucking 

operations (filed 2012, pending)

• Sheatsley v. Chesapeake Operating, Inc., et al. (No. 

4:11-CV-00353, Ark. Circuit Ct.) – Negligence, nuisance 

and trespass for damage from earthquakes allegedly 

triggered by fracking (filed 2011, removed to federal court)

17

Arkansas (cont.)

• Tucker v. Southwestern Energy Company, et al. (No. 

1:11-CV-00044, E.D. Ark.) – Negligence, nuisance, trespass 

and strict liability claims for property damage from soil and 

groundwater contamination and air emissions (filed 2011, 

motion for a more definite statement granted, settled 2012)

Louisiana

• Andre v. Exco Resources, Inc., et al. (No. 5:11-CV-00610, 

W.D. La.); and Beckman, et. al v. Exco Resources, Inc., 

et al. (No. 5:11-CV-00617, W.D. La.) – Negligence, strict 

liability and state statutory claims for property damage 

alleging groundwater contamination from a well blowout 

(filed 2011, settlement-in-principle in 2012, case stayed 

pending finalization of settlement)

Pennsylvania

• Bidlack, et. al v. Chesapeake Appalachia, LLC, et al. (No. 

3:11-CV-00129, Pa. Ct. of Common Pleas) – Negligence, 

nuisance, trespass, strict liability and state statutory claims 

for personal injury, medical monitoring and property damage 

alleging drinking water contamination (filed 2011, pending)
Fracking Litigation Reference List

Other Property Damage Lawsuits to Date Include:

Alabama

• Kennedy v. Jim Walter Resources, Inc., et al. (No. CV2011-900276.00, Circuit Court Ala.) – Negligence, trespass 

and nuisance claims alleging noise and damage to homes 

from subsidence (filed 2011, pending)

Louisiana

• Wesley v. J-W Operating Company, Inc. (No. 563014-C, 

1st Judicial District Court La.) – Negligence, nuisance and 

trespass claims alleging contamination of a drinking water 

well (filed 2012, pending)

New York

• Maring v. Nalbone (No. K12009001499, N.Y. Sup. Ct. 

Chautauqua Co.) – Property damage claims alleging 

contamination of well water from fracking operations (filed 

2009, pending)

Ohio

• Mangan v. Landmark 4, LLC (No. 1:12-CV-00613, N.D. 

Ohio); and Boggs v. Landmark 4, LLC (No. 1:12-CV00614, N.D. Ohio) – Negligence, nuisance, battery and 

fraudulent concealment claims for personal injury, medical 

monitoring and property damage alleging groundwater 

contamination by fracking fluid (filed 2012, pending)

18

Pennsylvania

• Berish, et al. v. Southwestern Energy Company, et al. 

(No. 3:10-CV-01981, M.D. Pa.) – Negligence, nuisance, strict 

liability and statutory claims for personal injuries, medical 

monitoring and property damage for alleged groundwater 

contamination (filed 2010, removed to federal court)

• Butts, et al. v. Southwestern Energy Production 

Company (No. 3:12-CV-01130, M.D. Pa.) – Negligence and 

nuisance claims for noise, vibration, excessive light and 

degradation of roads (filed 2012, pending)

• Fiorentino, et al. v. Cabot Oil & Gas Corporation, et al. 

(No. 3:09-CV-02284, M.D. Pa.) – Negligence, nuisance, strict 

liability and fraudulent misrepresentation claims for property 

damage, medical costs and medical monitoring for alleged 

groundwater contamination; and breach of contract alleging 

failure to remediate groundwater (filed 2010, motion to 

dismiss denied in 2010, settled 2012 for $4.1 million)

• Kamuck v. Shell Energy Holdings GP, LLC, et al. (No. 

4:11-CV-01425, M.D. Pa.) – Breach of contract claims 

alleging that lease did not permit drilling in the Marcellus 

Shale; and negligence, nuisance and strict liability claims for 

property damage and medical costs from alleged surface 

water contamination and air emissions (filed 2011, pending)

(continued on next slide)
Fracking Litigation Reference List

Other Property Damage Lawsuits to Date (cont.):

Texas

• Harris v. Devon Energy Production Co., L.P. (No. 4:10-

CV-00708, N. Tex.) – Negligence, nuisance, trespass, 

fraudulent concealment and strict liability claims for 

personal injury, medical monitoring and property damage 

alleging groundwater contamination from fracking 

operations (filed 2010, plaintiffs conceded on summary 

judgment that they could not prove causation, dismissed 

2012)

• Lipsky v. Range Resources Corp. (No. CV11-0798, Tex. 

Dist. Ct.) – A landowner sued a well operator claiming that 

fracking had caused methane contamination of a drinking 

water well; the defendant countersued for defamation 

claiming that the plaintiff and a consultant had falsified both 

the data and a video showing burning methane gas from a 

garden hose (filed 2011, plaintiff’s motion to dismiss the 

counterclaim denied 2012)

• St. Paul Fire & Marine Insurance Co. v. EOG 

Resources, Inc. (No. 2013-05158, Tex. Dist. Ct.) –

Negligence claims by an insurance company that 

reimbursed an insured for damage allegedly caused to its 

well by adjacent fracking operations by the defendant well 

operator (filed 2012, pending)

19

West Virginia

• Hagy v. Equitable Production Co. (No. 10-CV-13722, S.D. 

W. Va.) – Negligence, nuisance, trespass and strict liability 

claims for property damage and medical monitoring 

regarding alleged contamination of a drinking water well 

(filed 2010, dismissed on summary judgment in 2012 based 

on failure to prove negligence)

• Perna v. Reserve Oil & Gas, Inc. (No. 11-CV-2284, Circuit 

Court W. Va.) – Negligence, trespass, nuisance and state 

statutory claims by an owner of land leased to the defendant 

well operator alleging contamination and failure to restore 

property (filed 2011, pending)

• Teel v. Chesapeake Appalachia, LLC (No. 5:11-CV000059, W. Va. Circuit Ct.) – Negligence, trespass, 

nuisance and state statutory claims by owner of land leased 

to the defendant well operator alleging contamination and 

failure to restore property (filed 2011, summary judgment 

granted for defendant under state law allowing owner of 

subsurface rights to use the surface in a manner “fairly 

necessary for the enjoyment of the subsurface estate,” 

appeal pending)
Fracking Litigation Reference List

Other Personal Injury Lawsuits to Date Include:

Colorado

• Strudley v. Antero Resources Corp. (No. 2011CV2218, 

Colo. Dist. Ct.) – Negligence, nuisance, trespass and strict 

liability claims for alleged personal injuries and medical 

monitoring regarding well contamination allegedly caused 

by fracking operations (filed 2011, court entered Lone Pine 

case management order requiring threshold showings of 

harm and causation, dismissed with prejudice in 2012 after 

plaintiffs failed to make prima facie showing of causation)

Ohio

• Mangan v. Landmark 4, LLC (No. 1:12-CV-00613, N.D. 

Ohio); and Boggs v. Landmark 4, LLC (No. 1:12-CV00614, N.D. Ohio) – Negligence, nuisance, battery and 

fraudulent concealment claims for personal injury, medical 

monitoring and property damage alleging groundwater 

contamination by fracking fluid (filed 2012, pending)

20

Pennsylvania

• Berish, et al. v. Southwestern Energy Company, et al. 

(No. 3:10-CV-01981, M.D. Pa.) – Negligence, nuisance, 

strict liability and statutory claims for personal injuries, 

medical monitoring and property damage for alleged 

groundwater contamination (filed 2010, removed to federal 

court)

• Fiorentino, et al. v. Cabot Oil & Gas Corporation, et al. 

(No. 3:09-CV-02284, M.D. Pa.) – Negligence, nuisance, 

strict liability and fraudulent misrepresentation claims for 

property damage, medical costs and medical monitoring for 

alleged groundwater contamination; and breach of contract 

alleging failure to remediate groundwater (filed 2010, motion 

to dismiss denied, settled 2012 for $4.1 million)

• Kamuck v. Shell Energy Holdings GP, LLC, et al. (No. 

4:11-CV-01425, M.D. Pa.) – Breach of contract claims 

alleging that lease did not permit drilling in the Marcellus 

Shale; and negligence, nuisance and strict liability claims for 

property damage and medical costs from alleged surface 

water contamination and air emissions (filed 2011, pending)

(continued on next slide)
Fracking Litigation Reference List

Other Personal Injury Lawsuits to Date (cont.):

Texas

• Harris v. Devon Energy Production Co., L.P. (No. 4:10-

CV-00708, N. Tex.) – Negligence, nuisance, trespass, 

fraudulent concealment and strict liability claims for 

personal injury, medical monitoring and property damage 

alleging groundwater contamination from fracking 

operations (filed 2010, plaintiffs conceded on summary 

judgment that they could not prove causation, dismissed 

2012)

• Mitchell v. Encana Oil & Gas (USA), Inc., et al. (No. 3:10-

CV-02555, N. Tex.) – Negligence, nuisance, fraudulent 

concealment and strict liability claims for personal injury, 

medical monitoring and property damage for groundwater 

contamination allegedly caused by fracking operations 

(filed 2010, settled 2011)

21

West Virginia

• Bombardiere v. Schlumberger Tech. Corp. (No. 11-

00050, N.D. W.Va.) – Claims by a contractor for personal 

injuries allegedly caused by workplace exposure to 

fracking fluids at a well site (filed 2011, independent 

medical examination report found only one valid 

occupational injury and concluded that it already had been 

treated, dismissed 2013)

• Hagy v. Equitable Production Co. (No. 10-CV-13722, 

S.D. W. Va.) – Negligence, nuisance, trespass and strict 

liability claims for property damage and medical monitoring 

regarding alleged contamination of a drinking water well 

(filed 2010, dismissed on summary judgment in 2012 

based on failure to prove negligence)
Fracking Litigation Reference List

Lawsuits Regarding Lease Disputes Include:

New York

• Longo v. Chesapeake Appalachia LLC, et al. (No. 5:12-

CV-00371, N.D.N.Y.) – Claims for declaratory judgment 

and state statutory violations filed by a landowner alleging 

that the State’s 2008 suspension of fracking operations did 

not automatically extend the term of a drilling company’s 

lease under the “force majeure” doctrine (filed 2012, 

dismissed 2012)

22

Pennsylvania

• Fiorentino, et al. v. Cabot Oil & Gas Corporation, et al. 

(No. 3:09-CV-02284, M.D. Pa.) – Negligence, nuisance, 

strict liability and fraudulent misrepresentation claims for 

property damage, medical costs and medical monitoring for 

alleged groundwater contamination; and breach of contract 

alleging failure to remediate groundwater (filed 2010, motion 

to dismiss denied, settled 2012 for $4.1 million)

• Kamuck v. Shell Energy Holdings GP, LLC, et al. (No. 

4:11-CV-01425, M.D. Pa.) – Breach of contract claims 

alleging that lease did not permit drilling in the Marcellus 

Shale; and negligence, nuisance and strict liability claims for 

property damage and medical costs from alleged surface 

water contamination and air emissions (filed 2011, pending)
Fracking Litigation Reference List

Lawsuits by Environmental Groups Include:

Arkansas

• Ozark Society v. U.S. Forest Service (No. 4:11-CV00782, E.D. Ark.) – Challenge to leases of federal land for 

gas exploration, alleging that the Service failed to analyze 

environmental impacts sufficiently under NEPA (filed 2011, 

preliminary injunction denied, pending)

California

• Center for Biological Diversity v. Cal. Dept. of 

Conservation (Super. Ct. Alameda County, No. 

RG12652054) – Challenge to issuance of oil and gas 

permits that allow fracking (filed 2012)

• Center for Biological Diversity v. U.S. Bureau of Land 

Management (No. 11-CV-6174, N.D. Cal.) – Challenge to 

leases of 2,600 acres of federal land for oil development, 

alleging that the Bureau failed to analyze environmental 

impacts sufficiently under NEPA (filed 2011, pending)

New York

• Env. Working Group v. Dept. of Env. Protection (N.Y. 

Sup. Ct. Albany Co.) – FOIA lawsuit seeking documents 

regarding the oil and gas industry’s involvement in drafting 

fracking regulations (filed 2012, pending)

23

Pennsylvania

• Clean Water Action v. Municipal Authority of McKeesport 

(No. 2:11-CV-00940, W.D. Pa.) – Citizen suit under the Clean 

Water Act and state law, alleging that a municipal water 

treatment plant discharged pollutants from shale gas 

operations in violation of a permit (filed 2011, settled 2012)

• Citizens for Pennsylvania’s Future v. Ultra Resources, Inc.

(No. 4:11-CV-1360, M.D. Pa.) – Citizen suit under the Clean 

Air Act and state law, alleging that defendant failed to obtain 

necessary permits for oil and gas wells and failed to meet 

emission standards (filed 2011, pending)

Multi-State 

• Delaware Riverkeeper Network v. U.S. Army Corps of 

Engineers (No. 11-CV-3780, E.D.N.Y.) – Suit to enjoin 

fracking regulations proposed by the Delaware River Basin 

Commission for natural gas development in New York and 

Pennsylvania until the U.S. Army Corps of Engineers prepares 

an Environmental Impact Statement under NEPA (filed 2011, 

pending)