Balancing the Need for Energy and Clean Water: The Case for Applying Strict Liability in Hydraulic Fracturing Suits

Abstract

Hydraulic fracturing is a process used to extract natural gas from shale formations. This process has been used commercially since the 1940s, but has recently become prevalent as more shale formations have been discovered, specifically the Marcellus Shale formation in Pennsylvania. Although natural gas is a relatively clean source of domestic energy, there have been numerous allegations of water contamination caused by hydraulic fracturing, and several lawsuits have been filed as a result. Two of these suits (Berish v. Southwestern Energy Production Co. and Fiorentino v. Cabot & Gas) are pending in the U.S. District Court for the Middle District of Pennsylvania. Both complaints seek recovery under a strict liability cause of action—asserting that hydraulic fracturing is an “ultrahazardous and abnormally dangerous” activity. Although it is unlikely that the court will adopt a strict liability framework in deciding these cases, this Note argues that such a framework is both legally appropriate and beneficial to helping balance our energy needs and the importance of clean water. These pending cases will likely set the standard for future hydraulic fracturing contamination cases in Pennsylvania, and potentially across the United States.