In a groundbreaking verdict, a Texas jury has awarded damages to a family for injuries suffered due to air pollution from hydraulic fracturing (“hydrofracking”) drilling operations. This verdict follows almost inexorably from the rise in popularity in the past decade of hydrofracking as a means of natural gas production, which was quickly met with legal challenges. Between 2009 and 2013, the civil litigation landscape was flooded with lawsuits alleging toxic tort claims stemming from hydrofracking activities.
In general, the 42 cases filed during that five-year time period feature many common themes and similar allegations. Generally, these cases were brought by landowners seeking damages from energy companies that engaged or were preparing to engage in hydrofracking near to their homes. The plaintiffs in these suits claimed that natural gas drilling and operations caused their groundwater and drinking water to become discolored, sediment laden, and chemical filled and air surrounding the drilling sites to become contaminated. The affected landowners sought injunctions, monetary compensation, and often medical monitoring from energy companies whose behavior constituted nuisance, negligence, trespass, and breach of contract.
But a potentially broader verdict could spell trouble for the industry as a whole: on April 22, 2014, Parr v. Aruba Petroleum, Inc., No. 11-1650 (Dallas Cnty. Ct. at Law) became the first hydrofracking-related case to reach a jury, or receive any judgment on its merits. Many of the cases filed between 2011 and 2013 are still pending, and engaged in exhaustive discovery and contentious motion practice; many more have been settled.
In Wise County, Texas, where the Parr family resides, natural gas drilling and hydrofracking operations are pervasive. Aruba Petroleum operated 22 hydrofracking wells within two miles of the Parrs’ home and ranch, with the closest a mere 791 feet from their property. After the three members of the Parr family experienced illnesses such as asthma, ear-ringing, headaches and nausea and witnessed injury to their pets and livestock, they came to believe that something relating to the hydrofracking was preventing them from sleeping in their own home. So they filed suit against the energy company.
Unlike the typical claimants in these cases, the Parr family alleged that Aruba Petroleum’s hydrofracking operations had caused air pollution, which resulted in their exposure to hazardous gases and industrial waste, and caused significant personal injury and property damage. By the time this case reached the jury, it had been substantially narrowed, and was submitted only on the ory of private nuisance.
Five of the six members of the jury agreed with the plaintiffs, finding that Aruba Petroleum’s behavior intentionally created an interference with the Parrs’ use and enjoyment of their property. The jury awarded damages to the Parrs for pain and suffering, mental anguish, and diminution in the market value of their property, in an amount approaching $3 million. The court has since denied Aruba Petroleum’s motions for judgment not withstanding the verdict and to disregard jury findings.
While the Parr case is certainly not the only fracking-related case that alleges air contamination, it is also not a typical hydraulic fracturing toxic tort lawsuit. The primary claim in the majority of fracking cases is of water contamination, specifically of the intrusion of methane, hydraulic fracturing chemicals, and industrial wastes into the groundwater or drinking water supply. To succeed on these claims, plaintiffs must be able to prove to a scientific certainty that their injuries were caused by the drilling and operations – a rigorous inquiry, and one which, as related to hydraulic fracturing, is new to the legal landscape.
In this case, however, the Parrs were awarded damages for injuries arising from air pollution, which is common to drilling activities in general; suits of this type are routinely filed not only in hydrofracking cases, but in cases against oil and gas companies engaged in more traditional forms of energy production. Only time will tell how the remaining hydrofracking cases will be resolved, and whether air pollution claims can continue to succeed against those more traditional forms of energy production.