1. Fracking Plaintiffs Can’t Anticipate A Nuisance
Law360, New York (September 25, 2012, 2:30 PM ET) -- In August, a Colorado trial court dismissed
Evenson v. Antero Resources,[1] a putative class action brought by Battlement Mesa, Colo., residents
attempting to stop natural gas development using the technique known as hydraulic fracturing or
“fracking” in their community.
Fracking involves injection of a fluid mixture, typically consisting primarily of water, sand and a very small
proportion of chemicals (typically less than 1 percent of the volume) into shale rock under high pressure
to crack the rock formation and release natural gas.
Potential environmental impacts from fracking have been the subject of substantial controversy. Initially,
concerns focused on potential groundwater contamination, with either methane, as alleged in several
highly publicized cases in Dimock, Pa,[2] or fracking fluid constituents (some of which have been
classified as hazardous by regulators),[3] purportedly identified in a draft Environmental Protection
Agency report on Pavillion, Wyo., that was harshly criticized and the EPA subsequently backed away
from by agreeing to conduct additional testing.[4]
More recently, concerns have focused on potential air emissions from fracking operations and
earthquakes potentially associated with deep injection wells used to dispose waste water.
Fracking has spawned approximately four dozen private tort lawsuits claiming personal injury, medical
monitoring, property damage and various forms of injunctive relief.
Of the fracking tort suits filed to date, Evenson was probably the most interesting because it was an
implicit test case for a novel legal theory — anticipatory nuisance. Plaintiffs did not explicitly characterize
Evenson as an anticipatory nuisance case, but the characterization is apt.
The plaintiffs cited one historical incident in which Antero allegedly received a notice of violation from
state regulators for hydrocarbon odors emanating from an existing well pad near Battlement Mesa. Most
of the plaintiffs allegations, however, were not related to past events or current alleged injuries, but the
plaintiffs’ contention that irreversible future harm was “reasonably certain” to occur as a result of fracking
operations yet to begin.
The plaintiffs relied heavily upon a “Health Impact Analysis" (HIA) commissioned by the Garfield County
Board of County Commissioners and prepared by the Colorado School of Public Health to support their
contention that future harm would probably occur as a result of fracking.
The HIA had two stated goals: to identify ways that proposed natural gas development “can affect the
health of Battlement Mesa residents;” and to develop recommendations “to minimize the potential health
impacts.”[5] The HIA concluded, “the health of Battlement Mesa residents will most likely be affected by
chemical exposures, accidents/emergencies resulting from industry operations, and stress-related
community changes.”[6] Using risk assessment techniques that are not designed to prove causation but
to identify potential impacts among the most sensitive members of the population, with wide margins of
safety built in, the HIA identified airborne exposures to chemicals released during fracking operations as
having the greatest potential impact on human health for residents living within a half mile of a well
pad.[7]

2. Fracking Plaintiffs Can’t Anticipate A Nuisance
As initially filed, Evenson asserted three claims for relief: diminished property value, medical monitoring
and equitable relief establishing a medical monitoring fund and imposing conditions on gas development
to prevent “hazardous spills, releases, emissions and discharges.”
In response to a motion to dismiss, the court noted that the status of medical monitoring as either a claim
or a remedy was uncertain under Colorado law but undoubtedly depended upon an allegation of
underlying tortious conduct by the defendant.[8] Similarly, the court reasoned that any stigma allegedly
associated with fracking that reduced property values was “not actionable” in itself, “absent a recognized
cause of action such as trespass or nuisance.” Concluding that the plaintiffs had failed to assert any
cognizable claims to support the requested relief, the court dismissed the initial complaint in its entirety,
with leave to amend.
The plaintiffs subsequently filed a First Amended Complaint that included a single claim — equitable relief
in the form of a permanent injunction prohibiting Antero from “conducing any oil or gas drilling activities” in
Battlement Mesa. The plaintiffs alleged that they had a “reasonable fear of imminent and substantial
harm.”
In addition to the HIA, the plaintiffs cited an alleged increase in breast cancer rates in six Texas counties
with substantial natural gas development, the EPA’s draft report concerning alleged groundwater
contamination in Pavillion, Wyo., and Antero’s alleged history of safety violations to support their claims.
According to the plaintiffs, the following alleged consequences of drilling were “reasonably certain” to
occur: exposure of the plaintiffs and their properties to “toxic and hazardous substances,” “noxious
malodors,” “environmental contamination and polluting events,” diminished property values, interference
with property rights and “significantly increased risk of contracting serious latent disease.”
Ruling on a second motion to dismiss, the court concluded that it lacked jurisdiction over the plaintiffs’
claims for several reasons.[9]
First, the court held that it lacked jurisdiction to grant the requested relief. To enjoin natural gas
development “would, in effect, revoke or preclude the issuance of a drilling permit by the Colorado Oil and
Gas Conservation Commission.” The court found that both Colorado’s Administrative Procedure Act and
Oil and Gas Conservation Act provided statutory mechanisms for seeking judicial review of any permits
issued to Antero. The court rejected the plaintiffs’ futility argument and refused to let plaintiffs make an
end run around the requirement that they exhaust their statutory remedies before pursuing tort remedies.
Second, the court held that the plaintiffs’ claims were not ripe and found that the plaintiffs’ claims were
contingent upon events that might not occur: Antero’s seeking and the commission granting drilling
permits. Similarly, the court noted that Antero’s alleged history of spills is “no guarantee that future
accidents will occur.” The court held that plaintiffs “cannot support tort claims until the injuries actually
occur or begin to occur.”
Dismissal of the Evenson case represents a significant setback for plaintiffs hoping to make new law to
facilitate future fracking claims. Anticipatory nuisance is a critical component of a strategy that, if
successful, would permit plaintiffs to bring claims now, rather than later, if and when an injury in fact
occurs.

3. Fracking Plaintiffs Can’t Anticipate A Nuisance
Moreover, this strategy maximizes the number of potential plaintiffs since there are more people
potentially at risk than there are people (if any) who will, in fact, ultimately be injured. And, by setting the
bar for proof of injury so low, an anticipatory nuisance theory maximizes the potential for a judicial finding
of commonality that could permit aggregation of claims in a class action.
The Evenson court’s rejection of this implicit anticipatory nuisance claim at the motion to dismiss stage,
particularly in this case, where the plaintiffs relied upon a neutral, third-party study purporting to find a
likelihood of future adverse health impacts in the precise community at issue, represents a significant
defense victory.
--By Jennifer Quinn-Barabanov, Steptoe & Johnson LLP
Jennifer Quinn-Barabanov is a partner in the Washington, D.C., office of Steptoe & Johnson LLP
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its
clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general
information purposes and is not intended to be and should not be taken as legal advice.
[1] Case No. 2011 CV 5118 (District Court, Denver County, CO) (Aug. 17, 2012 Order).
[2] E.g., Fiorentino v. Cabot Oil & Gas, Co., No. 3:09-cv-02284 (M.D. Pa.).
[3] U.S. House of Representatives, Minority Staff Report, Chemicals Used In Hydraulic Fracturing, at 8
(April 2011), available at
http://democrats.energycommerce.house.gov/sites/default/files/documents/Hydraulic%20Fracturing%20R
eport%204.18.11.pdf.
[4] Press Release, Wyoming Governor Matthew H. Mead, the Northern Arapaho and Eastern Shoshone
Tribes, and U.S. EPA Administrator Lisa P. Jackson, Statement on Pavillion, Wyoming Groundwater
Investigation.
http://yosemite.epa.gov/opa/admpress.nsf/20ed1dfa1751192c8525735900400c30/17640d44f5be4cef852
579bb006432de!OpenDocument.
[5] Draft Battlement Mesa HIA, Revision 1 (February 2011) (emphasis added), available at
http://www.garfield-county.com/environmental-health/battlement-mesa-health-impact-assessment-
draft2.aspx.
[6] Id.
[7] Id. at ES-II
[8] Case No. 2011 CV 5118 (District Court, Denver County, CO) (Dec. 22, 2011 Order).
[9] Case No. 2011 CV 5118 (District Court, Denver County, CO) (Aug. 17, 2012 Order).