America’s First Fracking Trial

Re-posted from Naked Capitalism (with permission from the author) comes a well written piece on an important court case concerning damages to health and property from fracking operations in Texas (hat tip Run75441):

Texas Family Awarded $3 Million in America’s First Fracking Trial

by Lambert Strether of Corrente

$3 Million? More like this, please. Here’s some background on the suit, from Natural Gas Intelligence:

In a first-of-its-kind hydraulic fracturing (fracking) nuisance lawsuit, a Dallas Jury Tuesday awarded a North Texas family $2.95 million for physical and mental pain as well as loss of property value due to activities by Barnett Shale producer Aruba Petroleum Inc.

Plaintiffs Robert and Lisa Parr had sought $9 million in damages and alleged that 22 wells operated by Plano, TX-based Aruba within two miles of their land, about 15 miles west of Denton, TX, exposed them to toxic gases and industrial waste. The Parrs said they were forced from their home at certain times and had to live in Robert Parr’s office. The lawsuit said that exposure to volatile organic compounds from fracking made them sick and that the family’s well water had been polluted. …

The award, in Dallas County Court, did not include any exemplary damages as the jury did not find that Aruba had acted with malice.

The [Parr] family experienced chronic migraines, rashes, dizziness, nausea and chronic nosebleeds, including an incident when their daughter awoke in the middle of the night covered in blood, according to plaintiffs attorneys. Livestock and pets on the family’s ranch were also affected with nosebleeds and other illnesses. A dwarf calf was born of a cow that had delivered healthy calves before the fracking operations started.

Along with Aruba, the Parrs in 2011 sued a number of energy companies active near their land. Halliburton Co. won a summary judgment dismissal of claims in 2013. Settlements were struck between the Parrs and other defendants, including one with a subsidiary of ConocoPhillips Co.

The lead attorney representing the Parrs, Brad Gilde of Gilde Law Firm, did not respond to a request for comment.

Decatur is 28 miles west of Denton, where residents who have grown weary of fracking near their homes have gathered enough signatures on a petition to put a fracking ban before voters in November (see Shale Daily, April 10). Area residents are also suing Eagleridge Energy, claiming the company’s activities have diminished their property values.

(See also the Wise County Messenger’s account of the trial and damages.)

Jessica Desvarieux of the Real News Network interviewed the Parrs and their lawyer, Brad Gilde. Here’s the video:

More at The Real News

I’m going to print the transcript and intersperse commentary, since this case reminds me powerfully of the work I’ve been (vey peripherally) involved in with landfills, but also the work Yves has been doing with whistleblowers and CALpers. I’d better start by saying that the Parrs are a “middle class” family, who own a ranch, with cattle, that Parr is a stay-at-home Mom, and they successfully navigated the legal system. So, in one way, this is a distinctly meliorist story, one that gives the Parrs redress, not necessarily others, and certainly not all those in the class of people like the Parrs. Nevertheless, I think there are valuable lessons here for all of us.

DESVARIEUX: So I want to get a sense of the living conditions that you were dealing with, Lisa. Please paint for our viewers a picture of where your home was located in relation to these franking wells.

PARR: Well, we were surrounded by numerous wells, well over 60. But in close proximity there was one company that was just closer [crosstalk] being 791 feet.

DESVARIEUX: Okay. And what kind of effect did fracking have on your health?

PARR: Well, at first it was flu-like symptoms. It was stomachaches, blinding headaches, dizziness. That led into a rash over my entire body. I had–my lymph nodes in my neck were sticking out. They were the size of pecans. There were four of them on each side. I started stumbling, stuttering, falling down, losing my balance. I started–my face [drew up] like I had Bell’s palsy. During this time I was going to eight different specialists who were trying to figure out what was wrong with me.

Occasionally my boiler threatens to run out of oil before the truck can come, and I have to cab it to a truck stop and fill up a five gallon container with fuel, and then pour it into the oil tank at home. Boy, is that stuff nasty. It’s very clear that oil was meant to stay in the ground; it stinks, it’s corrosive, you don’t want to touch it, it stays on you; if oil isn’t taboo, it ought to be. I am so happy Maine has no hydrocarbons, even if it does make the groaf/jawbz bargain a lot harder to keep.

The biggest thing is, through this time we didn’t have any wells directly on our property, so we had no idea the link it had on our health effects.

In landfill terms, the Parrs would be an “abutter,” since although the wells are not on theirproperty land, they’re adjacent to it. Incredibly, or not, at least in Maine, only abutters are guaranteedstanding to sue the landfill; property lines are controlling, even though the ecological, systemic effects don’t respect property lines. In this case, detection of petroleum compounds that could only have come from the wells surrounding the Parr’s land gave them standing. Irrelevant legally, but important (I think) conceptually, notice how Parr originally understood the problem: As a “link” between her “entire body” and her “property.” What would a Martian think about that? Wouldn’t a Martian think it was strange to bring one’s own body and a legal (not to say ideological) construct into a relation, especially where bodily illness was concerned? And wouldn’t a Martian think it was odd not to conceive of living bodies and their surrounding air, water, and soil as a single system?

DESVARIEUX: And you also have a daughter, an 11-year-old daughter. Is that right, Lisa? What kind of effect did it have on her health?

PARR: She started–she was complaining of stomachaches, and she said she saw funny shapes in her peripheral vision. She started having nosebleeds. She started having rashes.

One way to think of fracking — indeed, one way to think of any neo-liberal project, like ObamaCare — is that it’s a medical experiment performed on human subjects without theirinformed consent. Drill the well, collect the data how an 11-year-old girl reacts (if at all). And, since oil companies are not Underpants Gnomes, profit!

DESVARIEUX: I want to bring Brad into this conversation, because, Brad, from my understanding, this is really the first fracking case, personal injury component, at least, that has won. Do you feel like we’re likely to see more of these? And can you also tell us how you argued this case and proved that the petroleum company was responsible?

The first? Yay!

GILDE: Sure. In response to your first question, I do anticipate seeing more of these type of cases. This is an industry that has by and large gone unchecked. The national gas boom that hit the United States–and Texas, for that matter–started in about 2008 [having been enabled by the Cheney Energy Task Force]. And many of the technologies that–created to make unconventional shale gas developments, although individually are kind of old, being used together it’s quite new. And the fact that this activity is now taking place in very close proximity to where people live, we are just now starting to see the ramifications of that. And the Parrs are unfortunately an example of that.

In our case, we tried the case that Aruba Petroleum, Inc., was a reckless natural gas company, and the jury agreed. And in closing arguments, I stated that the Parrs were kind of like the canary in the coal mine: they were the testing ground for these types of emissions and health effects. And it’s a tragic circumstance that they had to go through that. But I think their case, and certainly their verdict, echoes what a lot of people have experienced throughout the country related to their health effects, living in close proximity to this type of activity.

The Parr’s case is about health effects from proximity to oil. There are also health effects from fracking fluids used in the process of extracting the oil, which get into the water supply, either through groundwater contamination, run-off, or spillage from the trucks used to transport it. Unfortunately, in some states, “gag orders” prevent doctors from discussing potential health effects of fracking fluids with patients, because the fracking fluid formulas are proprietary. And what, again, would a Martian think of that?

DESVARIEUX: But, Brad, some people would be surprised to know that fracking is not covered under the EPA’s Clean Air Act or Safe Drinking Water Act. Were you surprised by this?

GILDE: Well, yes and no. I’m surprised that there is so little regulation on this industry. In fact, in Texas, because of the number of natural gas operators and the fact that all of this activity is quite new, it’s just too large for the administration to handle [because big gummint]. And so the Texas Railroad Commission, the Texas Commission on Environmental Quality, they rely in large part on self-reporting and self-policing. And, of course, when you have that and you have an industry that’s interested in producing gas but also doing so at a profit, there are going to be mishaps. And in this case we had a number of those mishaps with Aruba Petroleum, Inc. And, unfortunately, they affected the Parrs, and quite significantly.

Gilde doesn’t mention the Cheney Energy Task Force, which got its “Halliburton Loophole” for fracking fluids into the Safe Drinking Water Act, stripped the EPA of regulatory authority, and, for all we know — the task force deliberations are still secret — made the case for grabbing Iraq’s oil, along with fracking the entire continent.

DESVARIEUX: And, really, you mentioned this, Brad: Texas is sort of the heartland for the energy industry. And, Lisa, I want to ask you, there are going to be some people who are going to be out there saying that, you know, at the end of the day, fracking provides jobs and this is a necessary evil if we want to attain energy independence as we provide jobs to stimulate the economy. What’s your response to that?

PARR: We’re not against fracking and drilling. We’re not the antis. We are pro-responsible. If you’re going to do this in close proximity to homes, please be responsible. When you keep it in the pipes, when you have a leak, report it. You know, be aware of your neighbors. Pick up the phone, call them.

Like I said, meliorist. I am “anti,” and I consider that responsible; to the groundwater, for example. I think doubling down on the groaf/jawbs paradigm is madness, and I don’t want to turn the United States into a petro-state, if that hasn’t happened already. But I think the larger question is Parr’s definition of “neighbor.” She seems to think that an non-living entity, Aruba Petroleum Inc., which she addresses as “you,” can be a neighbor. Perhaps she defines a neighbor as an abutting property owner, human or not, but what would a Martian think of that? Further, I tend to think of a neighbor as anybody who shares my problems, somebody who abuts me in empathetic space; somebody, for example, whose water tastes like licorice too, even if they’re thirty miles downstream.

DESVARIEUX: Brad, what about you? What’s your response to that?

GILDE: I think that’s exactly right. I couldn’t say it better than Lisa. You know, this is an industry–and specifically with respect to Aruba Petroleum, Inc., they buried their head in the sand. They would not pick up the phone. The Parrs made a number of complaints, and Aruba gave them no attention. And so I think because of this type of practice, the unconventional shale gas development taking place in close proximity to where people live, you have to know your neighbor and you have to respect your neighbor and you have to pick up the phone. And in this case Aruba Petroleum, Inc., did not none of that.

When taking on any large entity, whether a landfill operator, an oil company, or the state of California, it’s critical to document everything. That’s what Yves is doing in her continuing series on CALpers, which is a master class in nastygrams and getting the right material on the record to really screw the bad guys hard. Here, it looks like the Parrs kept phone logs. Other candidates for logging include noise, odor, spills, trucks, and medical events, including effects on animals. It’s probably also best to log calls from the press, the entity itself, and state agencies. Becausewatch what happens (from TXsharon, not part of the interview):

Bob and Lisa Parr were neighbors to Tim and Christine Ruggiero in Wise County. I was there, in the Ruggiero kitchen, the day Lisa discovered that her timeline of doctor’s visits matched–exactly–Christine’s timeline of releases from the Aruba gas wells on her property.

Citizen science. Whaddaya know, you don’t necessarily have to go to an expert for cause an effect if you can pool resources with your (human) neighbors.

Further, on the landfill, we couldn’t afford lawyers and weren’t grantworthy, and so people in the group over time became subject matter experts in the entire process: Landfill engineering, the permitting process, the players in the State House, the law firms, and the press, and the (well-documented) history of the entire project. And we were able to share that expertise, which gradually grew to encompass far more than landfills, with other projects to resist corporate extraction of Maine’s resources. Now, I know this isn’t the same as creating Che Guevara-like cadres out in the woods, although perhaps that’s fortunate. However, efforts like these do build a tight network of trusted people. Valuable social capital! The stories do not say whether Parrs took a similar, social capital-building approach, but since there is a fracking ban being proposed in their town, that is happening somewhere.

DESVARIEUX: And it’s likely they’re going to be appealing this decision. What’s going to be your next move, then, Brad?

GILDE: Well, we’re going to challenge the appeal. You know, I think they have a right to appeal, but there are no points of error that I can see in this case. Aruba Petroleum, Inc., in the trial basically got every ruling that it wanted. It got the jury that it wanted. And, you know, the fact that the jury came back and found intentional nuisance is a reflection that the jury was upset with Aruba Petroleum Inc.’s actions. And I think the verdict is sound and based on an application of the facts to the charge. And we think it’s going to stand up.

I’ll take “intentional nuisance” — Gilde has to be a smart lawyer, to win the first case using this doctrine — but I think a Martin would scoff at “nuisance.” Everything and everyone around those wells is affected, not just the Parrs.

DESVARIEUX: Lisa, I’ll let you have the final word. What advice would you give those who know that they live in areas where there is a lot of fracking going on?

PARR: The biggest problem is the doctors don’t recognize what’s going on. And my doctors told me to start writing things down. If they couldn’t figure out what was wrong with me–my husband was sick as well, my daughter was sick–they knew it was something environmental. And so I started keeping a journal. And I wrote how we were feeling, what we’re seeing going on in the area. And that was, I think, a wonderful document in this case for the doctors as well as our lawsuit.

So be aware of what’s going on around you. If you see something going on and smell these sweet benzene type smells, report it and get some attention drawn to it.

Hopefully, the doctors weren’t gagged! And yes, as I just said, “start writing things down.”

* * *

I don’t want to minimize this victory, because (assuming the verdict is upheld on appeal) a doctrine of “intentional nuisance” is going to make it harder for the 1% of the 1% to organize assaults on the land where we live. But I don’t think “the biggest problem is that the doctors don’t recognize what’s going on.” I think the biggest problem is that we don’t recognize what’s going on. And if we keep trying to look at the world with one eye focused on “property” and the other eye focused on “our entire body,” it’s going to be very difficult to be as “aware” as Parr would like us to be. And who said our “entire body” stopped at our skin? Why don’t we consider the air, water, and soil part “entire” as well?

NOTE I hope this doesn’t come across as trashing the Parrs, or the amazing efforts of everybody who worked with them, including TXsharon, the Gasland crew, and so on. Rather, I’m trying to ask how we can scale efforts like this up, and make it easier to have equally happy outcomes, possibly with different doctrines, even different jurisdictional structures.