In North Carolina, no remedy for long term contamination from fracking?

Yesterday, the U.S. Supreme Court released its opinion in CTS v. Waldburger, a tort claim brought by neighbors of the CTS Superfund site in Asheville.  The court held that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, or Superfund) does not preempt North Carolina's 'statute of repose', N.C.G.S. §1-52(16), which requires that a person injured by the actions of another sue within 10 years of the final injury or give up the claim.  As a result, the Court dismissed the case brought by the neighbors, leaving them without a way remedy to recover damages from the company.


The situation that has afflicted the neighbors of the CTS site - severe contamination that was not identified until years after it was created - could easily happen to neighbors of a fracking operation.  Landowners in other states have experienced groundwater and soil contamination from spills of chemicals, overflows from flowback ponds, and leaks from improperly cased wells.  Moreover, the combination of fracking and horizontal drilling is only about a decade old at this point.  The industry stoutly maintains that fracking fluid injection into shale will not seep back up to contaminate groundwater.  Yet, researchers have found deep gas and deep brines in surface groundwater even where fracking has not yet happened, strongly implying the pre-existence of pathways for contamination, even before fracking injects fluids under intense pressures.

So, from any of these sources, it may take years for toxics to seep into groundwater and then show up in a neighbor's well.  Indeed, contamination may show up long after drilling has finished nearby.  So then what happens?

To be clear, a different outcome in CTS wouldn't necessarily change anything for neighbors injured by fracking. CERCLA already exempts pollution generated by the oil and gas industry - the so-called 'petroleum exclusion', including natural gas, 42 U.S.C. § 9601(14).  Even if the exclusion turns out not to cover contaminants in fracking fluid that are mixed into the gas - something that is still unsettled - an operator could point to compliance with a state permit as a defense, 42 U.S.C. § 9601(10)(I)(i-iii).  What's most important about CTS with respect to fracking is the reminder that North Carolina is one of a relatively small number of states (four, by Justice Ginsburg's count in her CTS dissent) that retain a statute of repose for tort claims. 

That statute of repose effectively undermines any hope of a long term remedy for injured neighbors in this state.  SL2012-143 (S820) establishes presumptive liability for operators if contamination shows up post-drilling in a nearby neighbor's water well.  SL2014-4 (S786), signed last week, weakens that liability, shrinking the area within which it applies and shifting the burden of arranging water testing to the neighbors.  But more significantly, neither Act creates an exception from the statute of repose.  Thus, if water well contamination from fracking shows up more than ten years after a well is closed and abandoned, there does not appear to be any remedy - either under the state fracking statutes or under state tort law - for the neighbors whose health or property values are injured.