Fight Over Fracking and Flaming Water in Parker County Hits Snag in Appeals Court

Categories: Legal Battles

lipsky.jpg
Monica Fuentes
A Parker County man who can ignite a 2-foot flame with gas siphoned from his well water won't get relief in a state appeals court under a law intended to stifle abusive litigation. Steve Lipsky says natural-gas producer Range Resources contaminated his water well with its nearby fracking operations. Range is suing Lipsky for defamation, claiming he falsely pilloried the company with a YouTube video of flaming hose connected to his water wellhead.

Bloomberg reported Friday that "Range Wins Appeal in Suit Against Texas Landowner," but the text of the state appeals court's ruling isn't quite so unequivocal. Lipsky asked the court to overturn district Judge Trey Loftin's ruling, which denied his motion to dismiss under state anti-SLAPP law (Strategic Lawsuits Against Public Participation). The state appeals court ruled Thursday that it simply didn't have jurisdiction to intervene and overturn a judge's "timely" ruling in a case still under way. That doesn't make a heck of a lot of sense given the purpose of the anti-SLAPP law -- to save folks like Lipsky from the expense and aggravation of defending themselves against frivolous lawsuits filed by powerful parties, whose sole intent is to bury someone exercising their rights to free speech and to petition the government for redress of grievances.

Instead, the appeals court will consider the briefs filed by Lipsky and Range and decide whether to issue a writ of mandamus, which would strike Loftin's decision to let Range's suit against Lipsky go forward.

What at first looked like a rural tort case has undergone a political transmogrification into something far larger over the last year or so. For the industry and Republicans, the Lipsky case became an exemplar of Obama's out-of-control EPA after the agency hit the company with the first endangerment order in the history of Texas oil and gas. For advocates and the aggrieved, Lipsky is yet another landowner steamrolled by a deep-pocketed company, and the state regulators and politicos who serve its interests (Read Fire in the Hole for an analysis of the case).

In the process, district Judge Loftin stepped down from the case after bragging about his rulings against Lipsky in a failed bid for re-election. And EPA regional administrator Al Armendariz resigned after Republicans began circulating a video in which he compared his enforcement strategy to the spectacle of a Roman crucifixion. The crucified, industry advocates and GOP legislators said, was none other than Range Resources in Parker County.


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10 comments
artman
artman

People, don't let this or any other case deter you from standing up for your rights to clean air and water. There is power in numbers which will make it harder and harder for the gas industry to compete with. There is also power in researching and educating yourself on the effects the oil and gas industry have on our environment. People are getting wiser. The drastic increased rates of diseases such as, schizophrenia, cancer, birth defects, autism, adult acne, anxiety/depression problems, arthritis, and others didn't just come out of thin air. These diseases are more than likely a result of the continued accumulation of toxic chemicals the oil and gas industry have perpetuated into our environment. These chemicals just remain in our environment getting into our food and water damaging our chemisty that our bodies rely on to function right and we don't even realize it. Now the oil and gas industry want to increase their chemical pollution a million fold through this new fracking boom that will add way more chemicals into our environment in addition to what we already have.

artman
artman

It is crooked judges like this one in this case that makes me sick to my stomach. He has little regard for the value of human life or he wouldn't have upheld anything the gas industry was trying to rebuke. Eventhough, a lot of the damage to our environment has already been done by the gas industry, I believe all the people should just start sueing the shit out of corporations not only for the damage they have done but the damage we have to live with from now and into the future. Make them pay up until all the profits they made off of our land is repaid to us. Clean water belongs to us, the people, therefore they need to pay us some "big" money. The gas industry is one sick manipulative puppy!

artman
artman

What is happening to this country?  People have just started to realize how much damage the oil and gas industry have already done to this environment and just how they work.   They work through the government.... including paid off judges like this one.... allowing them to victimize innocent people that have little to no money. These fracking companies silently build their rigs trying to stay under the radar until they make their money polluting the environment and then leaving it behind for other people to deal with.  Then they bully (with their deep pockets ) anyone who stands up to them.                            

marianagriggs
marianagriggs

The take home point is that once we let in a industry as aggressive as this one, with motives that appear to be for the good of many (clean burning energy), it's going to be really hard to change the rules if an "accident" happens. Please call for high standards and good neighbor practices as recommended by the American Petroleum Institute (API) for the new Dallas Gas Drilling Ordinance from the beginning.

The industry may threaten to sue our city, but we can argue the health and safety of our citizens is more important than switching to a new fuel that provides no guarantee of true security. Minerals migrate - add pressure and the gases migrate upward, into the water table, even if its not the gas you are trying to extract, you still made the other ones migrate upwards. It's not rocket science.

Crimjunkie
Crimjunkie

This is a pretty plain vanilla ruling by the Fort Worth Court of Appeals that it lacks jurisdiction over what we lawyers call an interlocutory appeal.

 

Readers Digest: A Texas civil litigant generally has no right to immediately appeal any trial court ruling made in the course of litigation.  Instead, she has to wait until the case is complete and take all appellate issues to the court of appeals at once.

 

Some statutes make exceptions and allow for immediate interlocutory appeals.  Apparently, the anti-SLAPP statute isn't one of them.

 

Civil litigants can file a so-called "original proceeding" in a court of appeals (typically a petition for a writ of mandamus in a situation like this) to complain that a trial court has issued an order that amounts to an "abuse of discretion" for which the ordinary right to appeal at the end of the trial court proceedings is "inadequate."

 

Where, as here, it isn't clear whether a right of interlocutory appeal will lie, prudent attorneys (and the Lipskys' attorneys certainly qualify) will ask the appellate court for relief either by way of interlocutory appeal or, alternatively, by writ of mandamus.

 

All that happened here is that the court of appeals determined, based on its decision in an earlier appeal with the same issue, that it lacks jurisdiction over the interlocutory appeal.  It invited the Lipskys to proceed through petition for writ of mandamus.  No decision on the merits.

 

The Bloomberg article comes close to explaining this, but the Bloomberg headline over that article is wildly misleading.  The frackers haven't won anything of moment, yet.

Texaspainter
Texaspainter

I think this is the same company that tried to intimidate another citizen because the citizen said that the company was part of a 'gas mafia'. I think that term 'mafia' is perfect for this type of industry based on their type of behavior.

pak152
pak152

 @scottindallas lot of opinion in that article with very little supporting citations

"In Wyoming, the EPA has concluded that contamination of groundwater in central Wyoming was linked to fracking." except that this particular study has been called into question

http://www.forbes.com/sites/christopherhelman/2011/12/09/questions-emerge-on-epas-wyoming-fracking-study/

 

"An independent review of the EPA's controversial draft study on hydraulic fracturing in Wyoming concluded federal regulators had insufficient data to suggest the natural gas drilling technique allowed methane to contaminate groundwater, near the town of Pavillion."

http://www.ibtimes.com/articles/341902/20120516/hydraulic-fracturing-encana-epa-water-pollution-methane.htm

 

http://blogs.denverpost.com/thebalancesheet/2012/06/18/fracking5236/5236/

scottindallas
scottindallas topcommenter

 @pak152 plus, you vanish like water on sand whenever I write about tax policy, or utilities versus free markets.  You're unarmed, cause your sophists who feed your head want to conflate basic market theories.  Go away, and learn the difference between net and gross profits, effective and nominal tax rates, utilities, professional and free markets.  Cause your arguments conflate all of these, and you've never answered to those arguments. 

scottindallas
scottindallas topcommenter

 @pak152 oil voice is an industry mag.  Don't be such a reflexive tool.  This is the oil industry itself reconsidering the effects of fracking.  Your comment couldn't have been more off the mark

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