By: Catherine Gavin, Staff Member

One of the first and most important steps of bringing a lawsuit is establishing the complaining party has standing.[1] An important aspect of standing is injury in fact.[2] Injury in fact requires a concrete and particularized injury that was actual or imminent. Additionally, the litigant must show that “(1) the agency action increased the risk of actual, threatened, or imminent environmental harm and (2) the litigant must show the increased risk of environmental harm injures its concrete interests by demonstrating either its geographical nexus to, or actual use of the site of the agency action.”[3] Litigants claiming that fracking caused them harm may run into an issue of proving the harm they suffered.

Fracking first began in the 1940s[4] and has since gained great popularity. Hydro-fracking, or more commonly known as fracking, is a multistage process that extracts natural gas.[5] The first stage of fracking includes vertically drilling a well thousands of feet into the ground.[6] A mixture of sand, water and other various chemicals is then put into the well at a high pressure, which then creates tiny fractures in the shale that the natural gas can escape through.[7] The natural gas escapes through the small fractures and is drawn back up to the surface where it can be refined, shipped and sold.[8] Waste water returns to the surface along with the natural gases.[9] Wastewater, if handled improperly, can be potentially harmful due to the radioactive elements that it may contain. [10] Despite the popularity of fracking, it has not escaped public debate and controversy of the supposed harmful effects of fracking.

Groundwater contamination is the most common harm associated with fracking. There are several ways in which a fracking well can cause groundwater contamination or other environmental harm. An improperly drilled well has the potential to case injury.[11] Additionally, handling the mixture of sand, water, and other chemicals improperly above ground can also lead to environmental harm. [12] Finally, incorrect disposal of the flow back waste can lead to harm that is actionable. [13]
It is unknown, however, whether a properly constructed well has the potential to cause groundwater contamination or environmental harm. An abundance of research is under way to determine this very fact. Thus far, research has yet to produce any concrete evidence that proves fracking wells cause groundwater contamination or harm. The Department of Energy, commenting about ongoing research, said that according to preliminary research there is no evidence of groundwater contamination from fracking.[14]

Due to the uncertain correlation between environmental harm and fracking it will be very difficult for a complaining party to meet the standing requirements. If the complaining party cannot prove an injury in fact and thus, not meet the constitutional requirements; he/she may be barred from bringing suit.
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[1] U.S. Const. art. III, § 2.
[2] Id.
[3] Amigos Braovs v. United States BLM, 816 F. Supp. 2d 1118, 1128 (D.N.M. 2011) (citing Comm to Save the Rio Hondo, 102 F.3d 445,499 (10th Cir. 1996)).
[4] John Richardson, The History of Fracking (A Timeline), http://energywithjr.quora.com/The-History-of-Fracking-A-Timeline (last visited November 11, 2013).
[5] Fracking explained what is fracking?, Clean Water Action, http://www.cleanwateraction.org/feature/fracking-explained (last visited November 11, 2013).
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Morgan Soraghan, Baffled About Fracking? You’re Not Alone, N.Y. Times (May 13, 2011), http://www.nytimes.com/gwire/2011/05/13/13greenwire-baffled-about-fracking-youre-not-alone-44383.html.
[12] Id.
[13] Vicki Vaughan, Shale play a worry for Bexas ozon, mySA (May 23, 2012, 7:53pm), http://www.mysanantonio.com/business/article/shale-play-a-worry-for-bexar-ozone-3581077.php.
[14] Kevin, Begos, Pennsylvania Fracking Study Shows Chemicals Did Not Contaminate Water, Huffington Post Green (July 19, 2013, 5:48pm), http://www.huffingtonpost.com/2013/07/19/pennsylvania-fracking-study_n_3622512.html.