Sierra Club v. Chesapeake Operating, LLC

248 F.Supp.3d 1194 (2017)

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Nature of the Case

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Facts

P alleges that the deep injection of liquid waste from oil and gas extraction activities by Chesapeake Operating, LLC, Devon Energy Production Co., LP, and New Dominion, LLC (Ds) has contributed, and continues to contribute, to an increase in earthquakes in Oklahoma and southern Kansas. P alleges that the number of earthquakes in Oklahoma increased from a maximum of 167 before 2009 to 5,838 in 2015. P claims the severity of earthquakes has increased as the number of earthquakes has increased. Id. The number of magnitude 3.5 earthquakes increased 50-fold, from 4 in 2009 to 220 in 2015. P alleges that a magnitude 7 earthquake is possible along the Nemaha fault which runs north-northwest between Oklahoma City and southern Kansas. P seeks an order requiring (1) Ds 'to reduce immediately and substantially the amounts of [wastes] they are injecting into the ground to levels that seismologists believe will not cause or contribute to increased earthquake frequency and severity;' (2) Ds 'to reinforce vulnerable structures that current forecasts indicate could be impacted by large magnitude earthquakes' during the period of time it takes the earthquake risk to return to the natural background; and (3) 'the establishment of an independent earthquake monitoring and prediction center to determine the amount of [wastes] which may be injected into a specific well or formation before induced seismicity occurs.' Ds seek to dismiss the complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6), and that the court should decline to exercise jurisdiction over this action under the Burford abstention and primary jurisdiction doctrines because the Oklahoma Corporation Commission (Commission) had taken action in response to the increased seismicity caused by wastewater disposal activities. The Commission had acted and adopted a comprehensive program proffered by federal authorities. This included daily recordings and integrity tests. Also, the governor created a council to develop additional solutions. Directives from the commission reduced the number of wells using waste injection as well.