Rinaldi on Fracking as an Abnormally Dangerous Activity

Rick Rinaldi (EiC of the Widener Law Journal) has posted his Note, Fracturing the Keystone:  Why Fracking in Pennsylvania Should Be Considered an Abnormally Dangerous Activity, to SSRN.  The abstract provides:

During the early morning hours of December 15, 2007, Thelma and Richard Payne, an elderly couple, were startled awake when an explosion in their basement dislodged their Ohio home from its foundation. Their homestead for more than a half-century was completely destroyed due to nearby hydraulic fracturing (“fracking”) operations. In a similar instance in 2010, high levels of methane were discovered in a Pennsylvania family’s basement. The discovery came after Michael Leighton found his drinking water bubbling over the top of his 100-foot well and twenty small geysers on his property spewing water mixed with methane into nearby streams. Again the likely culprit was a nearby fracking operation. Such events epitomize just some of the risks associated with fracking, which have led many concerned citizens to vehemently voice their opposition to the practice in the Marcellus Shale region. Analyzing those risks, this comment argues that unconventional horizontal fracking should be considered an “abnormally dangerous” activity in Pennsylvania because such a classification is both legally appropriate and paramount in mitigating the future harms of fracking. Part II(A) describes the geological characteristics of the Marcellus shale deposit, including its potential gas reserves and the technological challenges of extracting it. Part II(B) provides a detailed description of the recently pioneered fracking procedure and the environmental risks it presents. Part III discusses the current regulatory framework that applies to fracking in Pennsylvania and discusses the failures of that framework to sufficiently protect the public. Part IV traces the common law development of strict liability, applies the current rule to fracking, and discusses the negative results of alternatively analyzing fracking under a negligence regime. Part V concludes that fracking will become increasingly safer through the imposition of strict liability, which will mitigate the negative environmental impacts of the industry, and in time, allow for expanding gas production through safer methods.