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Page added on September 28, 2018
A Breakthrough for Hydraulic Fracturing
A revolutionary study of groundwater quality in the Ohio Middle Ordovician Utica Shale hydraulic fracturing play provides new evidence that “fracking” operations are safe to nearby water sources.
The study found that methane concentrations in the studied water supply did not increase over a period of four years, and the methane present was from plants, not fossil fuels — even while more than two thousand new horizontal wells were drilled in the region.
Reached for comment, Professor Amy Townsend-Small, one of the study’s authors, emphasized that her study analyzed many water samples over “a long time series of fracking activity.” She added that “most studies before mine only sampled once.” In other words, this rigorous study showed that the massive expansion of hydraulic fracturing operations in the Utica Shale did not increase methane in the local water supply. Hydraulic fracturing advocates now have a new public message and legal tool to push back on restrictive litigation and legislation.
The study was published in May 2018 in Environmental Monitoring and Assessment by scientists from the University of Cincinnati and University of California-Irvine. Its authors measured methane in water wells near drill sites, analyzing for pH, electrical conductivity, radiocarbon dating, and isotopic composition. They found that the proportion of water-borne methane attributable to a “fossil fuel derived natural gas source” did not increase as fracking operations expanded. Instead, most methane near the sites was attributable to biogenic and bacterial sources, and that remained true even as drilling increased.
The authors began their survey of the Utica Shale play in 2012, just as fracking operations were beginning to boom. The study focused on wells in Carroll, Harrison, and Stark counties, where firms including Chesapeake Energy, Rex Energy and Chevron have significant producing natural gas wells. The study authors hypothesized that methane concentration in the water supply “would increase as the number of shale gas wells in the area increased, with the isotopic composition of [methane] reflecting an increasingly fossil fuel derived natural gas source.”
Both these expectations proved wrong. Methane from fossil fuels has a different isotopic composition “fingerprint” than methane from soil or plant organic matter.
The authors found that the methane present throughout the study had a composition “indicating a biogenic [plant and bacteria-based methane] source.” This finding was then confirmed by radiocarbon age analysis. According to Professor Townsend-Small, this means “the methane in groundwater in our study area was predominantly from a microbial source,” and was not the result of oil and gas extraction.
While recent studies from Penn State and Yale have also found that “fracking” operations have minimal impact on groundwater quality, the Utica study is unique because it is one of the first to use isotopic composition, radiocarbon dating, pH and conductivity to determine the specific sources of methane in water wells over a lengthy time.
These scientific methods have significant ramifications for E&P general counsel and operational executives. Hydraulic fracturing has fueled the arrival of American energy independence. But firms engaged in “fracking” operations remain a rich target for plaintiffs’ attorneys, and some juries have made significant awards to plaintiffs even absent evidence establishing wrongdoing by an energy company. Before a federal judge in the Middle District of Pennsylvania threw out the verdict in Ely v. Cabot Oil & Gas in March 2017, a jury awarded plaintiffs $4.2 million on a water contamination theory. That award came despite plaintiffs’ heavy reliance on an expert witness who, according to the court, “conceded that he had no direct proof of [his main theory].”
The scientific methods used in this study can refute that sort of speculative theorizing. If operators’ counsel can show that the methane present in wells near key drill sites does not increase over time and has an isotopic composition consistent with a plant (not fossil fuel) source, the ability of plaintiffs to make a case will be curtailed. These technologies can be a critical part of defeating baseless claims at an early stage.
This study will be a powerful data point for natural gas producers in battles between plaintiff and defense experts in future lawsuits. But these scientific tools are best deployed proactively. The water tests used in this study are commercially available for $450. According to Alan Langenfeld, laboratory manager at Isotech Laboratories, these tests are “considered an isotopic fingerprint of [methane] gas” that can conclusively rule out a fossil fuel origin.
The tools deployed in the study can be effective when the necessary evidence is developed after a lawsuit is filed. But early use of isotopic “fingerprinting” analysis and similar tools can establish a baseline against which later water samples can be judged. Such evidence can help defense counsel win at summary judgment, or to obtain Lone Pine orders requiring plaintiffs to make an early showing on causation in order to continue the litigation. In some venues, including the Fifth Circuit, Lone Pine orders can be obtained prior to the commencement of any discovery.
Craig M. Warner is senior counsel with Bell Nunnally & Martin LLP in Dallas.
7 Comments on "A Breakthrough for Hydraulic Fracturing"
The last drop on Fri, 28th Sep 2018 10:37 pm
Yes, yes, please this is exactly what we need to read…all is safe, all is well, all is fine…no need to be concerned…the study conclusively finds this is so….
Paid for the Petroleum Institute of America
Do we really have any other choice?
George Straight on Fri, 28th Sep 2018 10:44 pm
As Senior Counsel at Bell Nunnally & Martin, LLP, I bring fourteen years of litigation experience to business disputes and a broad array of white collar criminal matters and internal investigations. Since earning my law degree from the University of Virginia in 2004, I have litigated trials and disputes for the U.S. Navy, the U.S. Department of Justice, King & Spalding, LLP, and the Office of the Texas Attorney General. I’ve litigated six jury trials as lead counsel in federal courts, and another dozen jury trials as lead or second counsel in military trial courts. I’ve won hundreds of other cases at Summary Judgment or by plea or settlement, and have been both lead and associate counsel in highly complex class action defenses. I have successfully argued multiple appeals both before the U.S. Courts of Appeals and in Texas state courts.
As an Assistant U.S. Attorney, I prosecuted complex drug trafficking/money laundering conspiracies, bribery and fraud offenses, and violent crime. In two cases I obtained the imposition of a life sentence after the jury trials of narcotics conspiracy kingpins. I was also one of three AUSAs responsible for the investigation, apprehension, and prosecution of serial killer Israel Keyes.
At King & Spalding, LLP, I litigated dozens of contract disputes and tort cases in state and federal courts and at arbitration, for small Texas businesses and Fortune 500 companies, ranging in value from hundreds of thousands to billions of dollars. I also conducted internal investigations into Antitrust issues and Stark Law/Anti-Kickback Statute/False Claims Act concerns, both for Fortune 500 companies and smaller corporations.
ALL POSTS AND COMMENTS ARE MADE IN MY PERSONAL CAPACITY ONLY AND DO NOT REFLECT THE VIEW OF ANY EMPLOYER PAST OR PRESENT.
Experience
Bell Nunnally & Martin LLP
Senior Counsel
Bell Nunnally & Martin LLP
April 2018 – Present 6 months
Dallas/Fort Worth Area
http://www.bellnunnally.com/craig-m-warner
Craig M. Warner is a member of the firm’s white collar defense and litigation practice areas. Since earning his law degree from the University of Virginia in 2004, Craig has litigated trials and disputes for the U.S. Navy, the U.S. Department of Justice, King & Spalding, LLP, and the Office of the Texas Attorney General. He has litigated six jury trials as lead counsel in federal courts, and another dozen jury trials as lead or second counsel in military trial courts. He has successfully litigated hundreds of other cases at Summary Judgment or by plea or settlement, and has been both lead and associate counsel in highly complex class action defenses. . Craig is licensed in both Texas and North Carolina, and admitted to practice before all four U.S. District Courts in Texas.
Texas Army National Guard
Captain, Deputy Command Judge Advocate, Special Operations Detachment – Africa (Airborne)
Texas Army National Guard
June 2015 – Present 3 years 4 months
Austin, Texas Area
As a Reservist, I have attended the United States Army Airborne School at Fort Benning, Georgia, qualifying as an Airborne Paratrooper; advised Special Forces commanders and trained Special Forces soldiers in the Law of Armed Conflict, Rules of Engagement issues, and Status of Forces Agreement details for deployments to Africa; trained hundreds of senior African military leaders during Operation Flintlock 2017 in Ndjamena, Chad; and provided key legal and logistical support during the Hurricane Harvey relief effort. I have earned four foreign Airborne Qualifications; the Army Achievement Medal; and the Humanitarian Service Medal.
Texas Attorney General
Assistant Attorney General & Trial Team Leader
Texas Attorney General
August 2016 – April 2018 1 year 9 months
Austin, Texas Area
With the Office of the Attorney General, I led litigation teams in complex disputes in state and federal courts, with an emphasis on financial litigation and class action defense.
In financial matters, I represented the Texas Comptroller’s Office in a dispute with a leading international investment bank, and aggressively negotiated a settlement resulting in a $450,000 payment to the Comptroller and indemnity for the State of Texas. I filed lawsuits for injunctive relief and the establishment of receiverships to recover funds for the State; in one case for the Texas Commissioner of Insurance, I led a team of attorneys and accountants in developing a lawsuit resulting in the successful seizure of more than $7 million in receivership funds.
In my class action practice, I was appointed lead counsel in a complex §1983 class action defense of the Texas Department of Criminal Justice, after class certification and denial of the State’s motion for summary judgment were already complete. I led and coordinated an eight-attorney team in a two-week hearing in the U.S. District Court for the Southern District of Texas, which involved extensive expert witness practice and cross examination of key witnesses. I prepared and defended depositions of senior executives of the Texas Department of Criminal Justice; and then led Texas’s negotiation team at two-day mediation, leading to a successful settlement.
King & Spalding, L.L.P.
Associate/Senior Associate
King & Spalding, L.L.P.
August 2012 – June 2016 3 years 11 months
Houston, Texas
At King & Spalding, my practice focused on Litigation, Arbitration, and Government Investigations.
I litigated and negotiated a variety of disputes: high-value real estate transactions; multi-million dollar contractual disputes between international corporations; and multi-million dollar construction disputes involving the construction of the nation’s largest oil refinery. I obtained plaintiffs’ verdicts at summary judgment both for a $2.1 million international trade dispute litigated in U.S. District Court, and for an employee compensation dispute before a Texas District Court in Harris County. My litigation work also included the defense of a complex nationwide federal class action involving one of the nation’s largest retailers of motor boats and outdoors sportswear and equipment. We were able to substantially reduce the size of the class and thus limit the recovery.
My work in the government investigations group included sensitive internal investigations of both Fortune 100 companies and closely held Texas corporations and major Texas hospitals. I advised an applicant in the Department of Justice’s Antitrust Division’s Corporate Leniency Program and the nearly two-year internal investigation in connection with the leniency application. The matter was resolved when the Justice Department closed the investigation. I also investigated financial reporting concerns, Stark Law claims, and Anti-Kickback Statute allegations on behalf of institutional clients.
United States Department of Justice
Assistant U.S. Attorney
United States Department of Justice
August 2009 – August 2012 3 years 1 month
Anchorage, Alaska; Washington, DC
As an Assistant U.S. Attorney, I prosecuted felony violations of federal law on behalf of the United States, with emphasis on interstate drug trafficking, money laundering and conspiracy; but also including violent crime, fraud, and environmental matters. I led inter-agency OCDETF investigations and prosecutions, supervising them and obtaining legal authority for Title III federal wiretaps and other investigatory tools. I investigated and prosecuted identity theft, tax fraud, and illegal gratuities cases. I litigated six cases to jury trial in federal district court, obtaining convictions in all six cases and obtaining the imposition of life sentences for convictions in two cases. I also briefed and argued six appellate cases on behalf of the United States before the Ninth Circuit Court of Appeals, winning affirmations for the government in all six cases. Finally, I was one of three federal prosecutors responsible for the investigation leading to the apprehension, confessions and indictment of serial killer Israel Keyes.
United States Navy
Naval Officer/Judge Advocate
United States Navy
August 2004 – June 2009 4 years 11 months
Norfolk,Virginia; Fallujah, Iraq; San Diego, California
As a Naval Officer and Judge Advocate, I investigated and litigated more than 200 Courts-Martial, including 12 jury trials, in Norfolk Virginia and San Diego, California. These included cases of insurance fraud, child exploitation and solicitation, sexual assault, false claims, hazing, drug trafficking and manslaughter. I also litigated more than 50 Administrative Separation Boards involving Sailors and Marines facing discharge without paid retirement due to alleged misconduct. In 2006 and 2007, I served in Fallujah, Iraq with 6th Marines as the Deputy Regimental Judge Advocate. While in Fallujah, I supervised the Regiment’s Detainee Operations program, taught the Rules of Engagement and the Law of Armed Conflict to Marine companies, settled damage claims with local Iraqis on behalf of the 6th Marines commanding officer, and advised operations officers on airstrikes in real time. I also earned the Fleet Marine Force (FMF) Officer Warfare Qualification during his deployment, along with the Iraq Campaign Medal and the Navy and Marine Corps Achievement Medal. My other Naval awards earned include the Navy and Marine Corps Commendation Medal, the Global War on Terror Deployment Medal, and the Sea Service Deployment Ribbon.
Education
University of Virginia School of Law
University of Virginia School of Law
J.D., Law
2001 – 2004
University of North Carolina at Chapel Hill
University of North Carolina at Chapel Hill
B.A., History/Political Science
1997 – 2001
Skills & Endorsements
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Recommendations
A preview of what LinkedIn members have to say about Craig:
I write to recommend Craig in the highest terms. Craig recently left our office to go back into the private sector. I worked with Craig on the prison heat class action litigation, and he shouldered the lion’s share of that burden and facilitated resolution of that very difficult case. The Court and opposing counsel were highly complimentary of Craig, and for good reason. Personally, Craig and I worked together on the trial team in federal court here in Austin representing a state agency in the face of a rules challenge regarding disposition of fetal remains. This was a highly charged, sensitive case that garnered a good deal of press. Craig was highly effective in preparing our witnesses, and in conducting both direct and cross examination in front of Judge Sam Sparks. I was honored to serve alongside him, and would welcome the opportunity to do so again in the future. Best to you, Craig. And thank you.
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I served as a Navy prosecutor with Craig in San Diego for 18 months. Craig was the sharpest, boldest, and most experienced prosecutor in our office. Craig never shied away from tough, complex cases and produced just outcomes for the government. Craig had an excellent rapport with the both judges and opposing counsel. It is no surprise to me, therefore, that Craig has become an enormously effective federal prosecutor.
Yep, seems like a trustworthy chap
joe on Sat, 29th Sep 2018 7:56 am
This is kinda like when Exonn told us not to worry about climate change cause their studies didn’t really show anything of any real eh….
Hey look over there! Zzzchooom!
(Dusty outline of a man that’s just ran for cover)
Duncan Idaho on Sat, 29th Sep 2018 9:27 am
Well, if they got the facts wrong, I’m sure Jesus will save us.
So all is good!
Its Saturday– how about some football and a few beers?
Lucifer on Sat, 29th Sep 2018 3:53 pm
Duncan, i have to enlighten you, Jesus will not save any of you, so all is not good.
Duncan Idaho on Sat, 29th Sep 2018 5:42 pm
Come now, the Cosmic Jewish Zombie is going to save me!
george on Sun, 30th Sep 2018 7:09 am
Somebody serve up a bowl of Agent Orange for professor Amy.