Jeremy A. Mercer, Amy L. Barrette, and Elizabeth E. Klingensmith
Yes, a federal court made the determination in 2014 and 2015 that hydraulic fracturing associated with unconventional oil and gas development in Pennsylvania is not an abnormally dangerous activity that is subject to strict liability. See Ely v. Cabot Oil & Gas Corp., 38 F. Supp. 3d 518 (M.D. Pa. 2014) (Report & Recommendation issued in January; adopted in April); see also Kamuck v. Shell Energy Holdings GP, LLC, Civil No. 4:11-CV-1425, 2015 U.S. Dist. LEXIS 37538 (M.D. Pa. March 25, 2015) (concluding hydraulic fracturing is not abnormally dangerous or subject to strict liability). In the Ely decision, the court undertook an extensive review of the factual record developed after years of discovery and concluded that there simply was no support for a view that hydraulic fracturing was an abnormally dangerous activity. Now, a Pennsylvania appellate court has reached the same conclusion—twice.
In a reported decision, the Commonwealth Court turned aside an argument on appeal that hydraulic fracturing was abnormally dangerous, relying on the Ely decision. United Refining Co. v. Dep’t of Envtl.. Prot., 163 A.3d 1125, 2017 Pa. Commw. LEXIS 353, at *20 (Pa. Commw. Ct. 2017) (“Also, while not binding on this Court, the United States District Court for the Middle District of Pennsylvania has held that hydraulic fracturing is not an abnormally dangerous activity under Pennsylvania law. … Thus, we reject Petitioner’s argument.”).
Earlier that same month, in rejecting a challenge to zoning that would allow R.E. Gas Development, LLC to engage in unconventional development, the Commonwealth Court concluded that unconventional oil and gas development was not abnormally dangerous. “To the extent that Objectors’ claims could be construed as asserting that oil and gas drilling is an ‘abnormally dangerous’ or ‘ultra-hazardous’ activity, thereby implicating strict tort liability, this assertion has been specifically rejected.” Del. Riverkeeper Network v. Middlesex Twp. Zoning Hearing Bd., No. 1229 C.D. 2015, 2017 Pa. Commw. Unpub. LEXIS 415, at *32 n.24 (Pa. Commw. Ct. June 7, 2017) (quoting Ely v. Cabot Oil & Gas Corp., 38 F. Supp. 3d 518, 529 (M.D. Pa. 2014)).
While the anti-drilling industry likely will continue the drumbeat that hydraulic fracturing is an abnormally dangerous activity, it seems the courts in Pennsylvania are ready to reject that argument in reliance on the well-reasoned and factually-supported decision in Ely.