Recent developments in Texas toxic tort and fracking litigation

Proving causation can be difficult in land contamination claims, but new research may provide evidence useful in fracking lawsuits.

Texas is a state known for its abundance of natural resources, including oil and shale. For businesses involved in extraction, however, the threat of lawsuits is very real and can quickly affect the economic viability of operations. Through years of litigation, Texas has developed a significant amount of case law regarding causation in toxic tort lawsuits. In order to recover on a claim involving a toxic tort, the plaintiff must be able to prove to a jury that the defendant caused the contamination and that the contamination led to a health issue.

For example, last summer in Bostic v. Georgia-Pacific, the Texas Court of Appeals held a "but-for" standard in proving causation when the case involves only one source of contamination, which is the standard in Texas product liability cases. In other words, if "but for" the alleged contamination, the plaintiff would not have been injured, there is no basis for recovery. However, for cases involving multiple potential sources of contamination, the issue is cloudier. In Bostic, the court held that in a claim regarding asbestos exposure, "a plaintiff may produce epidemiological studies that establish a threshold of exposure to a toxin over which a person's risk of sustaining injury is more than doubled." Additionally, a plaintiff can establish that exposure to a toxin caused injury through "direct, scientifically reliable proof." These legal standards may play a role in future asbestos and fracking toxic tort cases.

Fracking's impact on drinking water

To date, little scientific evidence exists that shows fracking is detrimental to nearby drinking water. However, an October 2014 study claimed that through geochemical tracers, fracking flowback water can be differentiated from other types of wastewater, even those from conventional oil and gas wells. The results of one study are not conclusive; however, a lot of researchers are looking into the issue of whether fracking impacts the health and safety of nearby drinking water.

Additional new evidence may soon be arriving that could also affect epidemiological evidence in fracking lawsuits. The U.S. Environmental Protection Agency has been studying the effect of hydraulic fracturing on the environment since 2009, when Congress asked the EPA to research the issue. The results were due in December of 2014, but the EPA did not meet that deadline. The EPA is expected to release its results in the near future, however.

What these developments means for extraction companies in Texas remains to be seen. In many cases, a lack of scientific evidence has led to cases alleging toxic exposure because of fracking to be dismissed or granted summary judgment in favor of the defendant. Yet with fracking a part of the energy landscape in Texas for the foreseeable future, there is no reason to doubt that litigation will continue. Proving causation through scientifically reliable evidence will be an issue to watch closely in the coming years.

Businesses involved in toxic tort litigation should contact the experienced attorneys at Stanton Serbousek Law Firm to aggressively defend any claims alleging toxic exposure caused by fracking.

Keywords: Toxic torts, fracking, environmental contamination, drinking water pollution, civil litigation defense.