The Sierra Club has sued Chesapeake Energy, Devon Energy and New Dominion in federal court in Oklahoma. The complaint alleges that waste injection by all three companies has contributed to an increase in the number and severity of earthquakes throughout Oklahoma and southern Kansas. Specifically, it claims that the number of earthquakes in Oklahoma has increased more than 300 fold, from a maximum of 167 before 2009 to over 58,000 in 2015. Likewise, it claims that the severity of the earthquakes has increased. For example, it claims that the number of magnitude 3.5 earthquakes has increased from four in 2009 to 220 in 2015. It also claims that the number of earthquakes “is an indication that more severe earthquakes are likely.” The Sierra Club earlier sent a “notice of intent to sue” to the energy companies laying out their case and including graphic presentations of their allegations.
To reduce the alleged risk of harm from future injection-induced earthquakes, the Sierra Club seeks an order requiring the defendants to substantially reduce their injection, particularly into the Arbuckle formation, a layer of rock it alleges is just about the basement rock in which the earthquakes originate. Until reduction injection volumes can be accomplished, the Sierra Club also seeks an order requiring the defendants to reinforce vulnerable structures that forecasts indicate could be impacted by large magnitude earthquakes.
The sole basis of the complaint is the so-called “imminent endangerment” provision of the Resource Conservation Recovery Act at 42 U.S.C. § 6972(a)(1)(B). That statutory provision authorizes persons with standing to bring an injunction action against “any person [. . .] including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment[.]”
On February 16, 2016, the Oil and Gas Conservation Division of the Oklahoma Corporation Commission announced the latest in a series of plans intended to reduce the volume of injected oil and gas wastes in western Oklahoma. The announcement included links to earlier directives issued by the agency for wells throughout areas of concern in the state.
This article was authored by Robert G. McLusky, Jackson Kelly, PLLC.