Reviving Rylands: How the Doctrine Could Be Used to Claim Compensation for Environmental Damages Caused by Fracking

Published date01 April 2014
Date01 April 2014
Reviving Rylands: How the Doctrine Could Be Used
to Claim Compensation for Environmental Damages
Caused by Fracking
Róisín Áine Costello
Contemporary societies are characterized by complex
interdependence, with industrial activity increasingly
having the potential to cause effects beyond local and
national borders. Courts have previously illustrated
that liability for injurious action must lie with the indi-
vidual who created the risk of damage under the
common law rule of Rylands v. Fletcher. Having fallen
out of favour in the twentieth century, this article pro-
poses a re-articulation of the rule to cover situations in
modern society in which invasive methods are used in
the extraction of volatile fuels from the earth, specifi-
cally in the case of ‘fracking’. The article examines
recent rulings from the United States and the United
Kingdom, as well as precedent from the United
Kingdom and Ireland to establish the manner in which
the rule of Rylands v. Fletcher might be successfully
re-articulated in the context of contemporary common
law jurisdictions – specifically focusing on Ireland –
as a means for redressing environmental damage.
In an increasingly interdependent society, ultimate
liability for injury or damage arising from industry
should lie with those who engage in the potentially inju-
rious activity. Common law courts have previously
illustrated that, insofar as society approves of the dis-
tribution of burdens of responsibility to certain indi-
viduals or groups, liability for injurious action must lie
with the individual who created the risk of damage.
However, the increasingly invasive methods used in the
extraction of volatile fuels from the earth, particularly
through ‘fracking’, pose significant challenges to bal-
ancing the protection of the environment and the prop-
erty rights of individuals with conditions that do not
stifle industry.
This article will examine attempts to regulate this new
industry and will seek to locate ‘fracking’ within the
constellation of activities with potentially negative envi-
ronmental implications that should be accorded strict
liability status under the rule in Rylands v. Fletcher.1
The article will undertake a comparative evaluation
of the laws and regulations governing fracking in place
in the common law jurisdictions in which Rylands first
emerged and enjoyed general application – namely the
United Kingdom, Australia and Ireland.
The article first defines fracking and examines its emer-
gence and current use both in the United States and
Europe. It then outlines the emergence of the rule in
Rylands v. Fletcher, its uses and adoption throughout
common law jurisdictions and its decline in use during
the late twentieth century. The article next considers
the case of Dimock, Pennsylvania, as a specific example
of situations in which fracking may lead to a cause of
action under the rule in Rylands. Finally, the article
turns to Ireland as an example of the current legal and
regulatory context of fuel extraction laws in common
law jurisdictions, and speculates as to the potential
revival of the rule in Rylands to cover damages sus-
tained as a result of the escape of fracking fluids in
Ireland and in other common law jurisdictions.
Hydraulic fracturing or ‘fracking’ involves the injection
of large quantities of water, sand and chemicals (usually
a significant quantity of which is methane) deep into
the ground at high pressure in order to force small,
dispersed gas deposits to the surface where they are
extracted and stored.2Fracking has proved controver-
sial and has been the subject of study in respect to its
potential environmental consequences.3Such conse-
quences potentially include pollution of groundwater
1Rylands v. Fletcher, [1868] UKHL 1.
2For a brief explanation of fracking, see BBC, ‘What is Fracking: The
Process Explained in 15 Seconds’, BBC News (13 December 2012),
found at:>. Gas extracted
through fracking is commonly referred to as ‘shale gas’.
3BBC, ‘What is Fracking and Why is It Controversial?’, BBC News
(27 June 2013), found at:
14432401>. A recent poll carried out by The Economist, supported by
Statoil, found that 51% of those surveyed disagreed with the state-
ment that the benefits derived from shale gas outweigh the draw-
backs of hydraulic fracturing. See ‘Join the Debate’, The Economist (2
March 2013), found at:
Review of European Community & International Environmental Law
RECIEL 23 (1) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12059
© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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