What Natural Gas Drilling Companies Don’t Want Property Owners to Know: The Significance of Pre-Drilling Water Testing

As property owners throughout the country, especially those in rural areas that are completely dependent upon well water as their primary source of fresh potable drinking water, are increasingly encountering natural gas drilling or more commonly referred to as hydraulic fracking activities near their property, the often recurring question remains as to whether such drilling activities have or may have the potential to adversely harm their well-water, aquifers, streams, lakes, ground-water, or other sources of fresh water.

The modern day tragedy in many of these situations is that the property owner may have purchased such land years or even decades ago, and at the time of purchase, never even considered the importance of conducting substantive and measurable water quality testing prior to drilling their family well.  As a result, years later, when such property owner discovers that their well water may have been potentially contaminated by natural gas drilling or fracking related activities, they have no accurate water quality baseline by which to scientifically measure, gauge, or otherwise accurately determine the extent or scope of such water contamination.  In fact, many natural gas drilling companies will seize upon such omission or failure in seeking to deny liability or alternatively, will argue that there is a natural forming baseline or natural exposure of certain minerals or chemicals in well water that cannot in any causal way be attributed to the company’s drilling or fracking related activities.  To rebut such industry arguments, many States now, through their respective Departments of Environmental Protection (DEP) now require many natural gas drilling companies to conduct pre-drilling and baseline related water quality testing.  Here is a link to many State regulations regarding mandatory pre-drilling and baseline requirements.  

The challenge for property owners with respect to such State pre-drilling and baseline requirements, is that they are generally conducted exclusively and under the control by the company themselves, including selection of the industry based water testing company and labs that may evaluate and analyze the results, and as such, it is often highly questionable as to whether such industry based testing is objective and bias free.  

In short, the most reliable, certain, and accurate means by which a property owner can insure their property interests are preserved, is at the outset of purchasing property or drilling a water well, conducting their own independent pre-drilling water quality testing, using widely accepted water quality methods and testing sources.

For a more thorough discussion as to the legal significance of pre-drilling water quality testing, see the American Bar Association’s February 15, 2015 article entitled, “Fracking Debate: The Importance of Pre-Drill Water-Quality Testing.” 

About Us

Robert N. Wilkey, Esq. is the Principal Attorney of Wilkey Legal Consultants, LLC (“WLC”) located in Exton, PA, with over a decade of class action, mass tort, and complex civil litigation experience, including environmental and regulatory issues involving property owners adversely harmed by natural gas drilling or fracking related activities.  Mr. WIlkey holds a BA/MPP from Brigham Young University and a JD from the University of Iowa College of Law, and currently provides regulatory, legal, and consultation and litigation services to individuals, corporations, industry, non-profits, school districts, and government entities.  

Legal Disclaimer

The information contained in this Website Article is the property and copyright of WLC and no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system, without permission in writing from WLC.  The information contained in this Website Article, is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The forms, documents, statements and opinions expressed therein, and links within this site, must not be construed as a substitute for legal advice, nor is it intended to be legal advice.

Use of this Website Article, or contact through this Website Article, is not intended to create, and does not create an attorney-client relationship. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. You are urged to seek competent legal advice in the specific state in which you live and in the appropriate area of law to answer your needs.

Wilkey Legal Consultants, LLC
Eagleview Office Plaza
600 Eagleview Blvd., Suite 300
Exton, PA 19341

http://www.robertwilkey.com

Toll Free Number: (888) 598-1112
Local Number: (610) 465-7393
Facsimile: (484) 698-7961

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The Esquith Class Action Against the Los Angeles Unified School District: Class Treatment Not Proper Where Individualized Questions Predominate

There are a number of media outlets reporting a class action filed this week by a teacher named Rafe Esquith on behalf of himself and 2,000 teachers in the Los Angeles Unified School District.  As one paper is reporting, the gist of the class action is based on allegations of the District “employing an ‘investigative hit squad’ to drum up false charges against older, well-paid teachers in an effort to avoid paying their retirement benefits.”  A copy of the intent to file a class action complaint can be located here. The class action lawsuit by Esquith follows an earlier individual lawsuit by this teacher alleging claims for defamation and employment retaliatory conduct against the School District and others.  

Without getting into the substantive merits of Esquith’s legal claims against the Los Angeles Unified School District, it is significant to highlight not only the procedural fallibility of such proposed class action lawsuit, but the absurdity in opting to seek class treatment for such claims, where the proposed class allegations are facially individualized and therefore remain clearly deficient throughout.

The procedural guidelines and jurisprudence regarding class certification is well established, where Fed. R. Civ. Pro. No. 23(a) set forth that, “a class may only be certified if: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”  See also Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir. 2009).   Additionally, under Rule 23(b)(3), a class may be certified if the district court “finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. citing to (8 Fed. R. Civ. P. 23(b)(3)).

In Plaintiff’s document entitled “Claim against the Los Angeles Unified School District” and Class Action Claims (pg. 15) dated June 22, 2015, Plaintiffs sets forth nearly 14 pages of individualized allegations, facts, circumstances and/or prohibited conduct, forming the basis of Plaintiff’s legal claims against the School District.  Herein lies the achilles heel for Mr. Esquith’s efforts to seek class certification and treatment for this particular case against the School District, where based on his own assertions and allegations, establishes a clear course of individualized questions of law and facts that are specific to him and him alone.  If Mr. Esquith’s narrative describing facts and allegations against the District are indicative of what other teachers and prospective class members may or may not have experienced, then it is certain that the Court will be hard-pressed to determine that class treatment here is procedurally proper where questions of law or fact common to class members do not predominate, rather it is the questions affecting individuals members that predominates wherein class treatment is not proper in this case.

About Us

Robert N. Wilkey, Esq. is the Principal Attorney of Wilkey Legal Consultants, LLC (“WLC”) located in Exton, PA, with over a decade of class action, mass tort, and complex civil litigation experience.  Mr. WIlkey holds a BA/MPP from Brigham Young University and a JD from the University of Iowa College of Law, and currently provides regulatory, legal, and consultation and litigation services to corporations, industry, non-profits, school districts, and government entities.

Legal Disclaimer

The information contained in this Website Article is the property and copyright of WLC and no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system, without permission in writing from WLC.  The information contained in this Website Article, is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The forms, documents, statements and opinions expressed therein, and links within this site, must not be construed as a substitute for legal advice, nor is it intended to be legal advice.

Use of this Website Article, or contact through this Website Article, is not intended to create, and does not create an attorney-client relationship. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. You are urged to seek competent legal advice in the specific state in which you live and in the appropriate area of law to answer your needs.

Wilkey Legal Consultants, LLC
Eagleview Office Plaza
600 Eagleview Blvd., Suite 300
Exton, PA 19341

http://www.robertwilkey.com
Toll Free Number: (888) 598-1112
Local Number: (610) 465-7393
Facsimile: (484) 698-7961

Email: info@robertwilkey.com