This post was originally posted on WLF Legal Pulse.
In 2016, the Sierra Club filed suit in Oklahoma alleging that use of state-permitted deep wastewater injection wells was causing increased seismic activity—both in frequency and severity. Sierra Club v. Chesapeake Operating, LLC, et al., Case No. CIV-16-134-F, United States District Court for the Western District of Oklahoma.
In an April 4, 2017 Order the court dismissed the case, declining to exercise jurisdiction because doing so would interfere with the state regulators’ efforts to address the alleged increased seismic activity from wastewater injection.
For decades, wastewater injection wells have been used to safely dispose of water that is a common byproduct of oil and gas extraction. The disposal wells are drilled and completed to protect drinking water. The geological formations into which the wastewater is injected are thousands of feet below fresh water formations to prevent contamination of drinking water. Without such disposal wells, oil and gas production in Oklahoma would become prohibitively expensive.
In 1981, pursuant to authority under the federal Safe Drinking Water Act, EPA granted primary jurisdiction to regulate wastewater disposal wells in Oklahoma to the Oklahoma Corporation Commission (OCC), the state agency with regulatory authority over oil and gas activity in Oklahoma.
The Sierra Club specifically alleged that the injection of wastewater produced during oil and gas extraction had caused a 300-fold increase in earthquakes from 2009 to 2015, and a 50-fold increase in the number of 3.5 scale earthquakes. It further alleged that Oklahoma now has the highest risk of earthquakes in the nation, and that the earthquakes caused by wastewater injection created an imminent and substantial danger to the environment, infrastructure, public health, and safety.
Alleging violations of the federal Resource Conservation and Recovery Act (RCRA), the Sierra Club asked the court to remedy the alleged earthquake risk by ordering the defendants to (i) immediately and substantially reduce the volume of wastewater injections, (ii) pay for reinforcement of vulnerable structures, and (iii) establish an earthquake monitoring and prediction center to study and determine the volumes of wastewater that can be safely injected without inducing seismic activity.
The court acknowledged that RCRA allows a private party to bring suit against any person or entity that handles, stores, treats, or disposes of wastewater in a manner presenting an imminent and substantial endangerment to public health or the environment. Nonetheless, the court concluded that dismissal was appropriate under the related doctrines of Abstention and Primary Jurisdiction.
The Abstention Doctrine allows a federal court to decline to hear a case that would disrupt state efforts to establish a uniform policy dealing with a matter of great public concern, especially when the state is actively addressing the concerns. The Primary Jurisdiction Doctrine is intended to promote the proper separation between courts and specialized regulatory agencies, protecting the function of agencies that possess particularized expertise and are charged with ensuring uniformity of regulatory outcomes.