View in your browser.

In this newsletter and in two separate reports I have offered an important emerging consensus in the public debate about hydraulic fracturing:


The process of hydraulic fracturing is not intrinsically dangerous. A growing consensus among energy companies, state regulators, academics, and environmentalists is that the safety issue rests in well construction.

That is good news; it means that safe drilling is achievable through proper regulation and company due diligence. (Emphasis added.)


An important addition to this strengthening consensus came this week from scientists "often accused of anti-fracking bias" (as stated by The News & Observer, whose editors had previously expressed hope that their work, once published, would show that "perhaps fracking isn’t for North Carolina after all").

A team of researchers from Duke University, The Ohio State University, Stanford University, Dartmouth College, and the University of Rochester analyzed 133 drinking water wells over the Marcellus Shale formation in Pennsylvania and 20 wells over the Barnett Shale formation in Texas, both places where there have been reports of methane in the water, which has caused some to suspect the culprit was hydraulic fracturing in local shale-gas extraction. Their findings were published this week in the Proceedings of the National Academy of Sciences.

The team "identified eight discrete clusters of fugitive gas contamination, seven in Pennsylvania and one in Texas." They tested seven different hypotheses for the contamination, the sixth of which was "direct migration of gases upward through the overlying strata following horizontal drilling or hydraulic fracturing."

In all eight clusters, they concluded that well failures were the cause, not fracking:


In general, our data suggest that where fugitive gas contamination occurs, well integrity problems are most likely associated with casing or cementing issues. In contrast, our data do not suggest that horizontal drilling or hydraulic fracturing has provided a conduit to connect deep Marcellus or Barnett Formation directly to surface aquifers. …

In our opinion, optimizing well integrity is a critical, feasible, and cost-effective way to reduce problems with drinking-water contamination and to alleviate public concerns accompanying shale-gas extraction.


Implications for Texas, site of the infamous flaming garden hose

A previous newsletter and my Policy Report have discussed the Parker County, Texas, landowner in the video used in the movie "Gasland Part II" holding a garden hose spewing flames. The landowner, Steven Lipsky, had deliberately attached the hose to a gas vent over the well. Over a mile beneath the surface of Lipsky’s property are well lines operated by Range Resources, an oil and gas company.

In 2010 the U.S. Environmental Protection Agency (EPA) issued an unprecedented "Substantial and Imminent Endangerment Order" that


natural gas drilling near the homes by Range Resources in Parker County, Texas, has caused or contributed to the contamination of at least two residential drinking water wells. Therefore, today, EPA has ordered the company to step in immediately to stop the contamination, provide drinking water and provide methane gas monitors to the homeowners.


In March 2011 state regulators with the Texas Railroad Commission concluded their investigation of wells in Parker County and determined that natural gas wells operated by Range Resources were "not causing or contributing to contamination of any Parker County domestic water wells." Notably, the regulators found that


geochemical gas fingerprinting … demonstrated the gas in the domestic water wells came from the shallower Strawn gas field, which begins about 200 to 400 feet below the surface. The natural gas tested did not match the gas produced by Range from the much deeper Barnett Shale field, which is more than 5,000 feet below the surface in that area.


A year later, the EPA unilaterally removed its order. In 2014, the RRC returned to Parker County and retested wells but did not find sufficient evidence to conclude that Barnett Shale production activities were responsible for methane contamination in the aquifer. The RRC found on May 23, 2014, that "Contribution of natural gas to the aquifer by nearby Barnett Shale gas production is not indicated by the physical evidence."

The RRC did, however, speculate that the presence of gas in the water may be due to "natural migration of gas from the shallow Strawn Formation, exacerbated by water well construction practices whereby some water wells have penetrated ‘red beds’ in the transition interval between the aquifer and the Strawn Formation."

The newly published research found that the gas in the Barnett Shale area water wells they tested was similar in composition to Strawn-produced gases and therefore is "likely derived" from a Strawn source. Of their seven hypothesized scenarios, this Strawn-derived gas would in their assumption have entered the aquifer along the gas well annulus because of poor cementing.

That finding appears limited by the research question. The team does not appear to have even considered what the RRC found most likely: that some water wells  — as opposed to nearby gas wells — might have penetrated the transition interval between the very shallow Strawn Formation and the aquifer.


More on the Lipsky case — and some local color

After the EPA’s extraordinary order of 2010 but before it was withdrawn, and after the TRRC’s finding which prompted Lipsky’s accusation that "Range owned the Railroad Commission" and "got away with" contaminating his well, in June 2011 Steven Lipsky and his wife, Shyla, sued Range over contamination in his water well. In July 2011, Range countersued, accusing the Lipskys and Alisa Rich, an environmental activist and consultant with whom they worked, for conspiracy, defamation, and business disparagement.

This newsletter and my Policy Report cited a 2012 Texas District Court ruling that Lipsky had conspired with Alisa Rich, an environmental activist and consultant, to "provide local and national news media a deceptive video, calculated to alarm the public into believing the water was burning" and to provide "additional misleading information (including the garden hose video) to alarm the EPA. In Judge Trey E. Loftin’s opinion, the bulk of the evidence, including emails calling it a "strategy," were such that "a reasonable trier of fact" could conclude that they were "elements of a conspiracy to defame Range."

The judge later had to recuse himself from the case, however. As reported by Bloomberg,


With aspects of the case still pending in his courtroom, Judge Trey Loftin sent fliers to voters saying he forced the U.S. Environmental Protection Agency to back down. Loftin, who is campaigning to keep his state judgeship in a county west of Dallas, also sent out materials with the image of talk show host Rush Limbaugh, who credited the judge’s ruling in favor of driller Range Resources Corp. (RRC), based in Fort Worth, Texas, for getting the EPA to reverse course.


The Lipksys and Rich sought a writ of mandamus from the Court of Appeals, and in April 2013 they were partially granted relief. The grant relied on the Texas Citizens Participation Act (TCPA), a 2011 law intending to "encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury."

A panel for the appellate court ruled, under the TCPA, that Range’s claim of conspiracy were based on Rich and the Lipskys’ exercise of their rights of free speech and petition. Those included an August 12, 2010, email communication from Rich to Steven Lipsky, in which Rich wrote:


Yes, I know it is expensive – but after serious consideration I am strongly recommending we take an air sample 5 feet away from the hose that is hooked up to the well head. This is my thinking… TCEQ does not have any jurisdiction over water, only the RRC – and you saw how helpful they were. Just wait, it gets better. However, TCEQ has total jurisdiction over air emissions. Once the natural gas leaves the water it is an airborne issue; and therefore falls into their laps to get involved – which they will jump because they are in the middle of SunSet Review (oversight by EPA).

Also, I can then contact the EPA and discuss the fact that we have a multi-issue environmental concern, including potential for explosion AND impact to human health (especially children) they will be very receptive.

It is worth every penny if we can get jurisdiction to EPA who oversees TCEQ. I would like to get my technician out there tomorrow if you approve of this strategy. Please advise.


Rich had, in fact, a long acquaintanceship with EPA Region 6 administrator Al Armendariz, described by the New York Times as "the Texas-based U.S. EPA official who overrode state regulators in December to sanction a local driller for water contamination." The order, which Armendariz "quickly announced … to an environmental activist and another ally minutes after it was issued," came despite the RRC was in the midst of investigating the matter. It earned Armendariz a "Yee haw! Hats off to the new sheriff and his deputies!" from one of his correspondents.

This same administrator was forced into resignation when video surfaced of Armendariz speaking to colleagues about methods of EPA enforcement. Armendariz talked about the importance of the deterrent effect that follows from the EPA "making examples of people" by going after them aggressively. As he put it,


The Romans used to conquer little villages in the Mediterranean. They’d go into a little Turkish town somewhere, they’d find the first five guys they saw and they would crucify them. And then you know that town was really easy to manage for the next few years.


The appellate court also ruled that Range had not provided "clear and specific evidence" of prima facie support for the claim of conspiracy.

Nevertheless, while throwing out the conspiracy aspect, the court did not grant relief to Steven Lipsky of the charge of defamation and business disparagement.

Such a "split the baby" ruling therefore left both parties dissatisfied, and both have appealed. The Supreme Court of Texas will hear oral arguments on December 4, 2014.

Click here for the Rights & Regulation Update archive.