Inverse Condemnation and Fracking Disasters: Government Liability for the Environmental Consequences of Hydraulic Fracturing Under a Constitutional Takings Theory

Abstract

The practice of hydraulic fracturing, more commonly known as fracking, risks a number of dangerous environmental consequences. Notably, fracking operations can contaminate the underlying water table. Contamination of groundwater can disrupt the access of a nearby property to both potable drinking water and viable commercial irrigation. Usually, when a fracking operation results in this kind of groundwater contamination, affected plaintiffs sue the operator of the rig. This Note proposes that similarly situated plaintiffs also name a new defendant in these actions: the state agency that granted the fracking permit. The governmental actor could bear liability under a constitutional theory of inverse condemnation. Where contamination interferes with an individual’s use and enjoyment of property, the government actor bears responsibility for orchestrating the activity that caused the interference. In short, the government should be more discerning when granting permits to frack, because it can be held financially responsible for the fallout.