Hydraulic fracturing is controversial. Many people believe that hydraulic fracturing has caused contamination of groundwater and that the process should be prohibited because it is likely to cause additional contamination if it continues to be used. Many other people believe that hydraulic fracturing has not caused contamination and that little additional regulation is needed because fracturing is a useful process that poses little risk. Notably, this disagreement is not merely a difference of opinion regarding how society should balance economic development and environmental protection. Instead, the disagreement concerns facts – whether fracturing already has caused contamination and how much risk the process entails. In part, the disagreement about facts arises from the difficulties in proving whether water is contaminated and, if so, what caused the contamination. It is important to consider ways to deal with these difficulties because determining whether hydraulic fracturing has caused contamination in specific circumstances can shed light on the general level of risk involved in using fracturing. It also can be important for purposes of resolving the numerous individual lawsuits in which plaintiffs allege that their groundwater has been contaminated by hydraulic fracturing. This article contains four sections. The first two sections discuss what hydraulic fracturing is and the reasons why proving contamination claims is often difficult. The remaining sections discuss ways to deal with two "problems of proof." Specifically, the third section examines new state regulations that require or encourage baseline testing of groundwater before oil or gas drilling takes place. The absence of pre-drilling data has often been a problem when evaluating contamination claims. The fourth section of this paper discusses Lone Pine orders, a procedure that courts can use in an effort to quickly resolve cases in which plaintiffs lack evidence to support an essential element of their claim.


74 Ohio St. L.J. 71 (2013)

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