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"Whole lotta shakin' going on": recent studies link fracking and earthquakes.

This article originally appeared in the September 2014 Environmental and Energy Law Committee newsletter.

HYDRAULIC fracturing, commonly known as "fracking," is a well-stimulation technique involving high pressure drilling which has garnered notoriety in the recent press. This method of drilling involves blasting water, sand, and chemicals into rock formations to free up oil and gas. (1) Fracking generates vast amounts of wastewater, which is then pumped into injection wells which lead thousands of feet underground. According to some, " [scientists wonder whether [this wastewater] could trigger quakes by increasing underground pressure and lubricating faults." (2)

In Oklahoma in particular, there has been a documented and undisputed rise in the number of earthquakes in close proximity to oil and gas wells and fracking operations. The inquiry into the link between fracking and earthquakes has been fueled by the release of two articles published in July, 2014, by the journal SCIENCE.

The first article, published July 3, 2014, and hereinafter referenced as the "Keranen" study, is entitled Sharp Increase in Central Oklahoma Seismicity Since 2008 Induced by Massive Wastewater Injection. Although the title of the Keranen study suggests the researchers found that Oklahoma quakes are indeed "induced" by wastewater injection, the study itself does not reach such a conclusive result. Instead, the study specifies the data and techniques used by the researchers involved, and concludes based on that information, that the researchers "view [the quakes] as a response" to injection of wastewater. (3)

The second article, published the next day and entitled Injection Wells Blamed in Oklahoma Earthquakes, provides a summary of the Keranen study in terms the public can more easily understand. (4) This article, hereinafter referenced as the "Hand" article, summarized the results of the Keranen study, noted the public reaction, and discussed the response of regulators to the issue. However, it was premised on the opinion that the Keranen study had decisively found that the injection wells were directly responsible for the rise in earthquakes --a premise which is not supported by a review of the Keranen study itself.

Buoyed by the publication of the Keranen and Hand articles, many media reports have assumed a direct causal link between fracking and earthquakes had been found, concluding that "wells forcing massive amounts of drilling wastewater into the ground are probably causing quakes in Oklahoma." (5) The Keranen and Hand articles have garnered a lot of public interest in the fracking process, its consequences, and how to regulate it. According to an article published by CBS on July 14 of this year, "[h]undreds of central Oklahoma residents met with regulators and research geologists last month in Edmond, and many urged regulators to ban or severely restrict the disposal wells." (6)

The following article discusses the rise in earthquake activities in Oklahoma, the findings in the Hand and Keranen articles, the regulatory efforts underway to deal with this issue, the industry response, and recent litigation involving fracking and earthquakes.

I. The Rise In Earthquake Activity In Oklahoma

When discussing the truth or falsity of claimed links between quakes and fracking operations, it is important to be aware of the actual exponential rise in quake activity. According to one article, "Oklahoma has recorded nearly 250 small-to-medium earthquakes since January, ... That's close to half of all the magnitude 3 or higher earthquakes recorded this year in the continental United States." (7) Another article put the number in better perspective, noting:
   From 1978 to 2008, Oklahoma was hit
   with an average of just two quakes of
   3.0 magnitude of [sic] greater. As of
   June 19, 2014, there were 207 such
   quakes recorded in the state ..., (8)


These facts and statistics are apparently undisputed. Thus, scientists and the general public are all looking for the cause.

II. The Keranen And Hand Articles

Prior to the publication of the Keranen and Hand articles discussing the effects of wastewater injection wells, the act of fracking itself had already been found to cause earthquakes. Unlike current concerns linking stronger quakes to wastewater wells, it was previously recognized that "[s]eismologists know that hydraulic fracturing, or fracking ... can cause microquakes that are rarely strong enough to register on monitoring equipment." (9)

Earlier this year, one author noted,
   Fracking itself ... has previously been
   linked to earthquakes. Now, scientists
   believe that putting fracking wastewater
   in underground disposal wells ... is
   more strongly linked to seismic activity
   than fracking itself. (10)


Although it appeared there were previous questions regarding whether increased seismic activity did coincide with the injection of fracking wastewater into deep disposal wells, (11) the issue did not garner the attention it has recently received since the publication of the Keranen and Hand articles. As one author noted:
   Scientists first tied the disposal of
   resource-extraction wastewater with the
   induction of earthquakes in a Colorado
   case dating back decades. They determined
   a swarm of small quakes were
   triggered by wastewater injections from
   1962 to 1966 at the Rocky Mountain
   Arsenal well near Denver. (12)


The U.S. Geological Survey characterized previous fracking quakes as small. (13) However, concerns began growing when a 5.6 magnitude quake damaged buildings in Oklahoma in 2011. This quake, "fueled speculation that the 181 injection wells used for oil and gas exploration in the vicinity caused it." (14)

The Keranen and Hand articles published in July in the journal Science are at the heart of the newly revived controversy. (15) As noted above, the Keranen study was extremely detailed--providing the researchers' hypotheses, explaining the scientific methods they employed to test their theories, including illustrative graphs and models, and giving their opinions regarding the results of their studies. (16)

The Keranen study pointed out that the rise in the number of earthquakes "are part of a 40-fold increase in seismicity within Oklahoma during 2008 to 2013 ..." (17) It explained that in order to reach its findings, the scientists:
   focused on the [town of] Jones swarm
   [of quakes] and compared modeled
   pore pressure from hydrogeological
   models to the best-constrained earthquake
   hypocenters ...

   The Jones swarm began within 20 km
   of high rate wastewater disposal wells,
   among the highest rate in Oklahoma,
   between two regions of fluid injection
   ... The four high-rate wells are
   southwest of Jones in southeast Oklahoma

   City (SE OKC) and dispose of
   ~4 million barrels per month ...

   The migrating front of the Jones
   earthquake swarm corresponds closely
   to the expanding modeled pressure
   perturbation away from the SE OKC
   wells, which reaches 25 km from the
   wells by December 2009 and
   ~35 km by December 2012. The pore
   pressure change modeled at each hypocenter
   indicates a critical threshold
   of ~0.07 MPa, above which earthquakes
   are triggered. This threshold is
   compatible with prior observations that
   static stress changes of as little as ~0.01
   to 0.1 MPa are sufficient to trigger
   earthquakes when faults are near failure
   in the ambient stress field ... (18)


The researchers involved in the Keranen study claimed their * results indicate that for modeled diffusivities, ~85% of the pore pressure perturbation is contributed by the four high-rate SE OKC wells." (19) Based on this finding, they stated that they, "view the expanding Jones earthquake swarm as a response to regionally increased pore pressure from fluids primarily injected at the SE OKC wells." (20) In other words, they stated their opinion that the majority of recent earthquake activity was "a response" to the pressure from wastewater injected by the four highest-volume injection wells in Oklahoma. (21)

The Hand article relies on the Keranen study to claim that scientists definitively found fracking "could be responsible" for the increase in seismic activity. (22) Citing again to the Keranen study, the Hand article stated that the "vast majority of Oklahoma's more than 9000 injection wells cause no trouble whatsoever. Not so with four high-volume disposal wells ... near Oklahoma City ...," (23) Hand discusses the previous day's study to note that Katie Keranen, a geophysicist at Cornell University, and her colleagues, purportedly found these four wells "are capable of triggering the earthquakes" surrounding the town of Jones. (24) The article attempts to put the scientific Keranen study into layman's terms by simplifying the description of the methods used, succinctly explaining that those scientists had reached their conclusion by combining maps of the quakes with a hydrogeologic model showing how a wave of underground pressure from the wells did closely match the times and places of the quakes. (25)

The Hand article noted the company that owns the four high-volume wells at the heart of the Keranen study declined to answer questions, instead pointing out the study was based on "false assumptions." (26) However, the Hand article went on to state that Keranen herself was concerned about the proximity to the large fault running under Oklahoma City, which could cause a devastating magnitude-7 earthquake. (27) Although the Hand article notes Keranen acknowledges that this main fault is unlikely to rupture due to other factors, Hand states that Keranen maintains an "unmapped offshoot might be more susceptible to rising water pressures" that make a magnitude-6 earthquake near Oklahoma City "a plausible hazard." (28)

Keranen is not the only one cautioning that a larger quake is possible. Rob Williams, a geophysicist with the U.S. Geological Survey, believes that wastewater injection could be the cause of the increase in quakes and predicted to CNN that given the rate of earthquakes over the last six months, "it's concerning enough to be worried about a larger, damaging earthquake happening." (29)

As noted, the Keranen and Hand articles speak less conclusively of the cause of the earthquakes: noting they "view the ... earthquake [s] ... as a response" to injection wells, (30) or that such wells are "capable of triggering" quakes. (31) Even other articles are careful when claiming a direct causal link. One article claims "[s]tudies on the swarms of temblors in central Oklahoma, Ohio and North Texas have found probable links between injection wells and earthquakes," but then states this conclusion is based on "the caveat that a dearth of information on conditions underground before the injections began makes it difficult to unequivocally link them to quakes." (32)

The publication of the Keranen and Hand articles have even resulted in expanded hypothetical questions regarding the results of fracking operations. For example, in one article, scientists discuss how earthquakes caused by fracking may eventually lead to a supervolcano eruption at Yellowstone. (33)

III. Resulting Regulation Of Wastewater Injection Wells

Because of the recent rise of concern over the connection of fracking and earthquakes, regulators have started getting involved. The Hand article, discussed above, notes that enactment of new requirements and orders to scale back disposal operations have been issued by the governor of Oklahoma, the Oklahoma Corporation Commission, and regulators in Ohio, Arkansas, and Colorado. (34)

According to the Hand article, scientists face the problem of "identifying a safe rate of waste water disposal because so much depends on the local geology." (35) They also cannot judge whether smaller quakes specifically foretell of larger ones to follow. (36)

Texas is also considering tougher regulations governing fracking wastewater. Dr. Craig Pearson, the Texas Railroad Commission's new seismologist, informed the Texas House of Representatives' Subcommittee on Seismic Activity that the Commission's suggested "regulations would help make sure injected wastewater doesn't migrate onto inactive fault lines and cause man-made quakes." (37) The proposed regulations include a requirement that oil companies would have to include U.S. Geological Survey records of seismic events occurring around proposed well sites in their applications. (38) They would also allow the suspension or termination of any wastewater disposal operator's permit if certain conditions have been met, such as instances where "fluids have been leeching past where they're supposed to be." (39)

Some commentators have suggested that regulators have moved substantially in response to recent events:
   Indeed, the Railroad Commission has
   come a long way from January, when
   commission Chairman Barry Smitherman
   refused to acknowledge that the
   quakes were linked to any part of the
   fracking process. "It's not linked to
   fracking," he told local reporters after a
   meeting of concerned citizens. "If we
   find a link then we need to take a hard
   look at all these injection wells in this
   area. Reexamine them ... Perhaps there
   something that we're not aware of
   underground." (40)


IV. The Oil And Gas Industry's Response To Claims That Fracking Causes Earthquakes

The articles claiming possible connections between fracking and quakes are also careful to include the industry's responses. One article notes that Austin Holland, a research seismologist with the Oklahoma Geological Survey, admitted that "the same drilling methods have been used in [Oklahoma] for years but that frequent earthquakes did not become a problem until after 2009." (41) One author noted:
   In a statement, oil and gas advocacy
   group Energy in Depth told CBS
   News, "The best science available to
   us right now suggests strongly that
   fracking has nothing at all to do with
   these small seismic events." (42)


Another article quotes Dana Bohan as providing a response to these allegations on behalf of the oil and gas industry. (43) Bohan is with Energy in Depth, the research and education arm of the Independent Petroleum Association of America. Bohan pointed out that "very few events have been documented over the decades in which the disposal wells have been in operation." (44)

Many other industry analysts have cautioned that more research and scientific evidence is needed before the link can be justified.

Mike Terry of the Oklahoma Independent Petroleum Association told NBC Nightly News in June, "Ultimately it takes time, it takes data, and it takes scientists to figure this out." (45)

V. The Legal Response

To date, there have not been any lawsuits alleging a link between fracking and earthquakes, but some cases have tangentially referred to the issue.

Fracking played a small part in an Arkansas case, Hiser v. XTO Energy. (46) In Hiser, the jury ruled for the plaintiff on claims of negligence, private nuisance, and trespass, awarding $100,000 in compensatory damages and $200,000 in punitive based on damaging vibrations in her home. The oil company moved for a new trial, claiming that the mention of fracking in the case had wrongly influenced the jury because of the recent anti-fracking movement and websites. (47) Some jurors admitted they discussed fracking and how it causes earthquakes and vibrations, but claimed they no longer discussed it after receiving a note from the judge instructing them to stick to the evidence that had been presented. (48) Thus, the court refused to overturn the jury's verdict. (49)

An Ohio case by landowners against oil companies also only mentioned fracking. (50) The plaintiffs claimed they suffered personal injuries from contamination of their well water supply. (51) However, the court granted summary judgment to the companies, finding the plaintiffs failed to show any negligence and that any claims they may have had were covered by releases they had signed with the oil companies. (52) That case then led to a suit for indemnity between the oil companies, each claiming their contract required the other to reimburse them for the costs spent defending the original suit. (53) The case involved expert testimony about how wastewater from fracking operations may have infiltrated the well water supply at issue in the original case, thus suggesting to the court which company could have been responsible for the actual problems, and which portions of their contract would be triggered. (54)

VI. Conclusion

The seemingly ambivalent opinions resulting from the data analyzed in the Keranen study are not accepted by the oil and gas industry as scientific proof that fracking wastewater injection wells result in earthquake activity. However, the study has spawned new interest and research into the issue by both scientists and the industry and has stirred the public to demand stronger regulations of such wastewater injection wells. (55) As a result, we should expect further studies and numerous lawsuits based on such claims in the future.

(1) 8 Small Earthquakes Shake Oklahoma as Fracking Critics Grumble, CBS News at [paragraph] 9 (July 14, 2014) available at http://www.cbsnews.com/news/ 8-small-earthquakes-shake-oklahoma-as-fracking -critics-grumble/?utm_source=feedburner&utm_medium = feed&utm_campaign = Feed%3A+ cbsnews%2Ffeed +(CBSNews.com) (contributed to by the Associated Press).

(2) Emily Schmall and Justin Juozapavicus, States With Fracking See Surge In Earthquake Activity, HUFFPOST Green at [paragraph] 2 (July 14, 2014) available at http://www.huffingtonpost.com/2014/07/14/ fracking-earthquake_n_5 585892.html/.

(3) K.M. Keranen, M. Weingarten, G.A. Abers, B.A. Bekins, and S. Ge, Sharp Increase in Central Oklahoma Seismicity Since 2008 Induced by Massive Wastewater Injection, 345 Science no. 6195, pp. 448-451 (July 3, 2014) available for purchase at http://www.sciencemag.org/content/ 345/6195/448.

(4) Eric Hand, Injection Wells Blamed in Oklahoma Earthquakes, 345 Science no. 6192 (July 4, 2014) available for purchase at http://www.sciencemag.org/content/345/6192/13.summary.

(5) 8 Small Earthquakes, supra note 1 at photo caption.

(6) Id. at [paragraph] 11.

(7) Schmall, supra note 2 at [paragraph] 3.

(8) Ashley Fantz, Seven Earthquakes Shake Oklahoma in Two Days, CNN U.S. at [paragraph] 7 (July 13, 2014) available at http://www.cnn.com/2014/07/ 13/us/oklahoma-earthquakes/index.html.

(9) 8 Small Earthquakes, supra note 1 at [paragraph] 9.

(10) Nick Ramsey, New Study Links Oklahoma Earthquakes to Fracking, MSNBC at [paragraph] 2 (July 8, 2014) available at http://www.msnbc.com/the -last-word/oklahoma-earthquakes-linked-frackingstudy.

(11) Troy Hooper, USGS: Injection of Fracking Wastewater in Deep Disposal Wells May Have Triggered Spate of Earthquakes, Real Aspen at [paragraph] 3 (April 20, 2012) available at http://archives. realaspen.com/article/1106/USGS-Injection-offracking-waste -water-in-deep-disposal-wells-mayhave-triggered-spate-of-earthquakes.

(12) Id. at [paragraph] 5.

(13) Id. at [paragraph] 6.

(14) Id.

(15) Keranen, supra note 3 at 448-451; and Hand, supra note 4 at 413-414.

(16) Keranen, supra.

(17) Id. at [paragraph] 2.

(18) Id. at [paragraph][paragraph] 3, 4, and 6.

(19) Id. at [paragraph] 7.

(20) Id. at [paragraph] 8.

(21) Id.

(22) Hand, supra note 4 [paragraph] 2 (citing Keranen, supra note 3).

(23) Id at [paragraph] 5.

(24) Id.

(25) Id.

(26) Id.

(27) Id. at [paragraph] 6.

(28) Id.

(29) Fantz, supra note 8 at [paragraph][paragraph] 21-22.

(30) Keranen, supra note 3 at [paragraph] 8.

(31) Hand, supra note 4 at [paragraph] 5.

(32) Schmall, supra note 2 at [paragraph] 9.

(33) Yellowstone Volcano 2014: Could Earthquakes Induced by U.S. Oil Fracking Cause a Supervolcano Eruption? INQUISITR (August 27, 2014) available at http://www.inquisitr.com/1398011/yellowstone volcano-eruption-2014-could-earthquakes-triggered -by-u-s-oil-fracking-cause-a-supervolcano-to-blow/.

(34) Hand, supra note 4 at [paragraph] 7.

(35) Id. at [paragraph] 8.

(36) Id. at [paragraph] 9.

(37) Emily Atkin, Texas Proposes Tougher Rules on Fracking Wastewater After Earthquakes Surge, ClimateProgress at [paragraph] 2 (August 27, 2014) available at http://thinkprogress.org/climate/ 2014/08/27/3476207/texas-earthquake-rules-fracking/.

(38) Id. at [paragraph] 7.

(39) Id. at [paragraph] 8.

(40) Id. at [paragraph] 12.

(41) 8 Small Earthquakes, supra note 1 at [paragraph][paragraph] 12-13.

(42) Id. at [paragraph] 8.

(43) Schmall, supra note 2 at [paragraph] 10.

(44) Id.

(45) Ramsey, supra note 9 at [paragraph] 9.

(46) Hiser v. XTO Energy Inc., 2013 U.S. Dist. LEXIS 140667 (E.D. Ark. Sept. 30, 2013).

(47) Id. at *20.

(48) Id. at * 21-27.

(49) Id. at * 19-28.

(50) Hagy v. Equitable Prod. Co., 541 Fed. Appx. 316 (4th Cir. W. Va. 2013).

(51) Id. at p. 316.

(52) Id. at pp. 317-318.

(53) Warren Drilling Co. v. Equitable Prod. Co., 2014 U.S. Dist. LEXIS 52604 (S.D. Ohio Apr. 16, 2014).

(54) Id. at *19-22.

(55) Indeed, public opinion is already swayed. A comment to one of the articles linking fracking and the rise in earthquakes reveals the cynical view of the public:
   Science often takes time to find the causes of
   things and industries drive a truck through that
   to rake in as much money as possible until it is
   too late. By the time scientists do definitively
   find the cause, the industry causing it has left
   town and left the residents to live with the
   consequences on their own. This just another
   example of the greed and stupidity we accept
   from corporations because we buy into their
   misinformation campaigns and claims it is all
   about JOBS.


8 Small Earthquakes, supra note 9 Comment 10 by LFTD4966 on July 15, 2014.

Walter H. Boone is a partner with the law firm of Forman, Perry, Watkins, Krutz & Tardy, LLP, practicing out of Jackson, Mississippi, for over 24 years. He specializes in commercial and environmental litigation, as well as insurance defense and product liability. He is the recipient of multiple awards, including the The Best Lawyers in America[R] since 2013 (Litigation--Real Estate and Moss Tort Litigation/Class Actions--Defendants), Distinguished AV[TM] Peer Review Rated by Martindale-Hubbell[R], the "Pro Bono Publico Award" by the Hinds County Bar Association, and "Top 40 Under 40" by the Mississippi Business Journal. Mandie B. Robinson is as associate with the firm of Forman, Perry, Watkins, Krutz & Tardy, LLP. She has been practicing out of the Jackson, Mississippi, office for 13 years. She specializes in general commercial litigation with an emphasis in insurance defense.
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Author:Boone, Walter H.; Robinson, Mandie B.
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