Yes. If the contamination was caused by a previous oil and gas operator, the owner can file suit to seek recovery of the cost spent to remediate the property.
I represent both plaintiffs and defendants throughout the United States in lawsuits which seek the recovery of costs and damages incurred in cleaning up properties as a result of oil and gas development. The typical causes of actions asserted in most of these cases arise under statutory or common law. Statutory law contains a complex set of federal, state and local laws that address exploration and development.
Federal Statutes and Regulations
Under federal law, the main statutes include the Safe Drinking Water Act (“SDWA”), which regulates the underground injection of fluids from oil and gas activities; the Clean Water Act (“CWA”), which regulates surface discharges of water associated with oil and gas drilling and production; and the Clean Air Act (“CAA”), which limits air emissions from engines, gas processing equipment, and other sources associated with drilling and production.
State Statutes and Regulations
State laws also govern these claims. For instance, Section 85.321 of the Texas Natural Resources Code states permits a mineral or royalty interest owner who is damaged by a violation of a Railroad Commission rule or order, to file suit against the offending operator for damages. Section 91.101 of the Texas Natural Resources Code also gives the RRC broad powers “to prevent pollution of surface water or subsurface water in the state” by regulating the following: (1) the drilling of oil and gas wells; (2) the production of oil and gas; (3) the operation, abandonment, and proper plugging of wells; and (4) the discharge, storage, handling, transportation, reclamation, or disposal of oil and gas waste associated with any operation or activity regulated in the previous three categories.
The RRC regulates such activities primarily through various “statewide rules.” For instance, Statewide Rule 8 states that one of its greatest responsibilities is the protection of fresh water resources. Water protection is a major consideration in many of the RRC’s statewide rules and is the sole purpose of Statewide Rule 8. Rule 8(b) states that “no person conducting activities subject to regulation by the commission may cause or allow pollution of surface or subsurface water in the state.” Rule 8(d) governs pollution control for disposal pits. Statewide Rule 13 regulates casing, cementing, drilling, and completion requirements to ensure that “all usable-quality water zones be isolated and sealed off to effectively prevent contamination or harm, and all potentially productive zones be isolated and sealed off to prevent vertical migration of fluids and gases behind the casing.”
Under the federal underground injection control regulations, wells used in oil and gas operations are classified as Class II injection wells. The RRC asserts its jurisdiction over Class II injection wells through Statewide Rules 9 and 46. Statewide Rule 9 regulates “disposal wells” that inject salt water and other oil and gas wastes into zones not productive of oil, gas, or geothermal resources. Statewide Rule 46, on the other hand, “regulates ‘fluid injection wells’ that inject water (salt or fresh), steam, gas, or other energy sources into zones that are productive of oil and gas.” “Rule 46 wells are often used for pressure maintenance, secondary and tertiary recovery, or cycling.” The RRC does not currently regulate hydraulic fracturing largely because the federal regulations for UIC do not include hydraulic fracturing within its definition of Class II underground injection. However, if the federal law changes in this area in the future, Texas would likely regulate hydraulic fracturing operations through Statewide Rule 46.
Local regulations also come into play. For instance, in Texas the RRC neither has jurisdiction over nor exercises its regulatory authority over private or public roads or road use. Further, the RRC’s permits for oil and gas exploration, production, and waste disposal do not limit the independent authority of municipalities, counties, or other state agencies with respect to road use. The RRC also has no statutory authority over noise or nuisance related issues; such issues are governed by local ordinances. Although the RRC does not have regulatory authority over odors or air contaminants, cities may enact ordinances with respect to such nuisances for wells located within city limits.
Due to the increase in oil and gas activity, several cities throughout the country have passed natural gas well ordinances to regulate issues such as distance requirements, sound level, water usage, and permitting processes. Setback distances (the minimum length between a dwelling and a gas well that is required by a city) and limits on noise levels that may be generated in both daytime and nighttime operations are the most common municipal regulation. However, these requirements may vary from city to city. For example, the City of Southlake ordinance provides that a well must be at least 1,000 feet from any habitable structure, or from the property line of any occupied public or private school or hospital, whereas the City of Fort Worth ordinance only requires that the well be 600 feet away from such structures.
Under common law, the typical causes of action asserted by the plaintiffs are for nuisance (private and public), trespass, negligence, negligence per se, breach of contract, strict liability for ultra-hazardous and abnormally dangerous activities, liability under state hazardous sites cleanup acts, and fraud. Plaintiffs have also asserted claims for negligent misrepresentation, unjust enrichment, impairment of use of property, deceptive trade practice act violations, premises liability, fear of developing dreaded diseases, battery, and intentional infliction of emotional distress. The success of these latter claims differs dramatically from jurisdiction to jurisdiction.
When an environmental matter first arises, a client will typically seek advice from his or her attorney or environmental professional concerning the options available as well as the future course of action. I wrote a book which was meant to provide an overview of the typical claims and key defenses that one might encounter in such lawsuits. I am hopeful the information will provide both attorneys and environmental professionals with a basic framework of these claims so that they can better serve their clients. If you would like a copy of the book, please let me know and I will provide you with a free copy.
Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link. We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.