Attorneys: Marcellus Shale litigation sure to boom
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The sound of drills piercing the Marcellus Shale formation has pricked up the ears of attorneys whose practices range from tax and regulatory to land use and environmental. But personal injury lawyers and class action attorneys have also taken notice of what some believe is an environmental disaster in waiting because of a lack of state government oversight and a natural gas industry rushing to get a piece of the shale.
"The Marcellus Shale [could create] horrendous injuries because you have all this liquid and gas at high pressure, being carried over pipelines, being stored in million gallon ponds and tanks and being injected into the ground at high pressure," said Michael Rosenzweig, a partner and litigation manager in the Pittsburgh office of Edgar Snyder & Associates. "The failure scenarios are quite robust."
Those scenarios include everything from the potential for toxic gas leaks that cause burns and contaminate the environment to gas rig explosions, to somewhat less obvious concerns such as the problems large tanker trucks can create on small rural roadways.
Mr. Rosenzweig said his firm has already seen numerous cases in Pennsylvania unrelated to the Marcellus Shale in which natural gas tankers too large for two-lane roads caused accidents and dragged debris onto the roadways resulting in slick driving conditions for other vehicles.
Mr. Rosenzweig and other plaintiffs firms The Legal Intelligencer spoke to said that, so far, they haven't yet filed many, if any, Marcellus Shale-related injury cases. But many seemed to believe it's only a matter of time.
"They say that anywhere from 1 to 3 percent of the [natural gas] wells that are going to come into Pennsylvania have already come in," Mr. Rosenzweig said, adding that his firm has received a number of calls related to the Marcellus Shale.
"Whatever the effect has been today, it will be 33 times as great [in the future]. So if there's one explosion per month today, there will be 33 explosions per month a year or two years from now. We're seeing only the tip of the iceberg. If there are 250 trucks now, there will be 33 times that ... 8,000 trucks going to the wells and from the wells."
Stephen A. Sheller, founding partner of Sheller P.C. in Philadelphia, which was extensively involved in class action litigation related to the BP oil spill, said he hasn't received any inquiries about the Marcellus Shale but is nevertheless keeping a close eye on the play "because, frankly, it's going to be, if it's not already, a major environmental disaster problem and the governor is shirking obligations to protect the public."
Mr. Sheller said Pennsylvania Gov. Tom Corbett has displayed "total irresponsibility" with regard to the safety of Pennsylvania residents as natural gas drilling activity increasingly intensifies in the state, citing a lack of governmental oversight and regulation, as well as a refusal to tax the industry "to pay for the damage."
Julia LeMense, an attorney with Weitz & Luxenberg in New York, said her firm first took note of the potential Marcellus Shale-related litigation when they began receiving an influx of calls from Pennsylvania, West Virginia, Ohio and Maryland residents "concerned about what will happen or what they think has already happened to their air and water."
Ms. LeMense said she feels the Marcellus Shale play is ripe for litigation because the natural gas industry is growing in this region at such a fast clip that government regulators are "always playing catch-up."
"I think that, in general, it's a combination of the fact that this industry has boomed, no pun intended, and has outpaced the ability of most state regulators to keep up with it," she said.
"They simply don't have the budget to monitor every step of the process and regulations are only as good as your ability to enforce them."
Ms. LeMense said her firm began hearing concerns about the Marcellus Shale as early as 2007, but began receiving inquiries on a more regular basis beginning in 2009.
"People are concerned about odor; air emission by the drilling process and the treatment process after the gas is extracted; methane in their water because of the potential for explosions," she said, adding that there have also been "quality of life complaints" such as property damage caused by heavy machinery.
Jonathan W. Miller, a partner at the Locks Law Firm in Philadelphia, said his firm has received several Marcellus Shale-related inquiries.
"We have been approached about both negotiating leases and representing adversely impacted neighbors but we have not become involved to date," he said.
Mr. Rosenzweig said that, in addition to the potential hazards to residents, there's a significant risk of injuries to workers on Marcellus Shale drill sites as well.
According to Mr. Rosenzweig, gas rig sites are notoriously dangerous work environments.
"These things happen all the time. It's a common scenario on a drilling rig, people are badly hurt," he said.
But rather than a lack of government regulation, Mr. Rosenzweig blamed these injuries on a lack of supervision and overall safety at each individual site.
"The safety rules are not that specific, so it comes down to on-site safety and superintendence," he said.
And that requires the coordination of multiple contractors at each drill site, which is a rare occurrence, according to Mr. Rosenzweig.
Meanwhile, the same lack of coordination that leads to safety hazards also complicates liability in court, he said.
"Each one of these [gas rigs] is a Tower of Babel, with five to 10 different contractors working on each aspect," he said. "When there's an accident, who's to blame? A points to B and B points to C."
Mr. Rosenzweig, whose firm has yet to file a Marcellus Shale-related suit but has been involved in other natural gas drilling injury cases, said defendants in gas rig injury cases often attempt to "shift and share blame" by bringing in new defendants.
But not all plaintiffs firms that handle environmental torts said they see disaster on the horizon for the Marcellus Shale.
Merrill G. Davidoff, a senior shareholder and chair of the environmental group at Berger & Montague in Philadelphia, for example, said his firm has not been looking at the Marcellus Shale, in part because natural gas is generally considered less hazardous than other forms of fuel.
"All forms of energy have risk and, generally speaking, relative to coal and oil, natural gas is considered a cleaner fuel and one that carries less risk," he said.
A call to Mr. Corbett's office was not returned before press time.
First Published April 11, 2011 12:00 am