No Leg to Stand On: How Plaintiffs Suing Natural Gas Companies May Achieve Standing in Court

By Jim Creech

Hydraulic fracturing (“fracking”) has taken the world by storm, drastically altering the energy landscape in the United States and igniting one of the largest controversies in environmental policy in recent history. As proponents of fracking cite significant economic benefits, critics warn of the potential adverse environmental impacts. These differing viewpoints have largely dictated American energy policy, perhaps most significantly in the Energy Policy Act of 2005, through which gas companies are exempt from revealing the contents of their fracking fluids[1] under a provision colloquially termed the “Halliburton Loophole.”

Because of the Halliburton Loophole, people who claim to be injured by fracking fluids are unable to require gas companies to reveal the components of their fluids, making it nearly impossible for medical practitioners to confidently diagnose the causes of these alleged injuries. In 2012, a Pennsylvania doctor was unable to diagnose his patient because he did not know what she was exposed to through the fracking fluids, so he sued the gas company seeking disclosure of the chemicals used.[2] The court denied standing, finding that the doctor did not suffer any injury-in-fact and that a favorable decision from the court would not provide redress for the plaintiff’s claim.[3]

Lack of standing has prohibited numerous other potentially-injured plaintiffs from successfully bringing suits against gas companies.[4] Therefore, such plaintiffs must find other legal avenues through which to achieve standing in cases against gas companies to have any chance of learning what chemicals are used in fracking fluids. Such arguments may be based on provisions of the United States Constitution, federal environmental statutes, and potential legislative changes to existing fracking-friendly statutes and regulations.

Under the Constitution, a plaintiff may bring a claim under the Equal Protection Clause of the Fourteenth Amendment, which prohibits the federal government from denying any person “equal protection under the law.”[5]  In the context of fracking fluid disclosure, a plaintiff may assert that gas companies are legally defined as “persons” and that the Halliburton Loophole unjustly provides preferential treatment to gas companies over individuals without a reasonable basis for doing so, thereby violating Equal Protection under the Fourteenth Amendment.

Further, plaintiffs could sue under proactive environmental statutes, such as the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA), to assert that the specific practices of gas companies utilizing fracking are in violation of statutes that were created to protect the environment. For example, a plaintiff could allege under NEPA that the governing body that approved the gas company’s Environmental Assessment or Environmental Impact Statement did so in an arbitrary and capricious manner. A plaintiff could also argue that gas companies are wrongfully discharging pollutants into waters of the United States under the CWA.

Under reactive environmental statutes, such as the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act, plaintiffs could argue that gas companies have improperly polluted the environment with hazardous substances, and are therefore liable for remediation of the contaminated site.

Finally, a plaintiff could also seek legislative action in the form of lobbying legislators to repeal the “Halliburton Loophole” of the Energy Policy Act or to seek regulations from federal agencies to mandate disclosure of the chemicals used in fracking.

Regardless of the avenue chosen, potential plaintiffs will face a difficult road ahead as they try to establish standing to sue oil and gas companies to have them disclose the chemicals they use in their fracking fluids. Between difficult legal standards and the political benefits of promoting natural gas expansion, the trade secrets of the fracking industry are receiving strong backing to remain secrets, and the process has strong incentive to continue unhindered by the government.

[1] Energy Policy Act of 2005, H.R. 6, 109th Cong. (Jan. 4, 2005).

[2] Rodriguez v. Abruzzo, 29 F. Supp. 3d 480 (M.D. Penn. 2014), aff’d Rodriguez v. Sec’y of Penn. Dep’t of Envtl. Protection, 604 Fed. Appx. 113 (3d Cir. 2015).

[3] Rodriguez, 29 F. Supp. 3d at 486.

[4] See, e.g., Food and Water Watch v. State, No. 14AP-958, 2016 WL 2992651 (Ohio Ct. App. 2016); Goliad Cty. v. Uranium Energy, No. V-08-18, 2009 WL 1586688 (S.D. Tex. 2009); Ozark Soc’y v. U.S. Forest Serv., No. 4:11CV00782 SWW, 2012 WL 994441 (E.D. Ark. 2012); Town of Abita Springs v. U.S. Army Corps of Eng’rs, 153 F. Supp. 3d 894 (E.D. La. 2015); Delaware Riverkeeper Network v. Delaware River Basin Comm’n, No. 11-423, 2012 WL 3638699 (D.N.J. 2012); Don’t Drill Hills, Inc. v. City of Rochester Hills, Docket No. 324717, 2016 WL 1178263 (Mich. Ct. App. 2016).

[5] U.S. Const. amend. XIV.

One comment

  1. If a doctor doesn’t have standing to sue because he or she has not suffered an injury, then why can’t the patient (the injured party) bring a suit? This seems like a tricky situation where the patient can’t pinpoint if the gas company’s chemical concoction has actually caused their injury without first knowing what chemicals are used.

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