State and EPA Battle Over Fracking, Flaming Well Water
When Steve Lipsky blamed fracking for turning his water well into a flamethrower, he set off an epic battle between EPA and TX.
Houston Press | Brantley Hargrove
April 25, 2012
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Steve Lipsky gripped a garden hose and held it at arm's length, staring as a guttering tongue of fire poured from its end and grew another foot before his eyes.
"Look at that," he said in awe as the flame, liquid and sinuous, licked the rural darkness outside his home in Parker County. "It's getting bigger. Holy cow! Look at that. We're up to five feet. That's not even, what, 25 minutes? We could do this a lot bigger."
As the fire blazed and was recorded on a video camera during the summer of 2010, water poured from a nearby length of pipe atop the well that once supplied drinking water to his family's home. Since at least Christmas the year before, Lipsky would testify later, his submersible pump had coughed, sputtered and struggled to fill a 5,000-gallon holding tank with water. He hired a well-service tech to replace the pump, but found a very different problem: natural gas, and lots of it.
For months Lipsky had felt as though something was wrong with him. He was often tired and nauseated. In panicked moments, he feared he was dying of cancer. Perhaps this would explain it all — the pump, the tap water that foamed, the flaming hose.
Parker County Fire Marshal Shawn Scott was the first authority to see the fire trick. After blowing off Lipsky as an imaginative crank, in July 2010 Scott finally pulled up to Lipsky's palatial, 15,000-square-foot manse, at the end of a live oak-lined inlet off the Brazos River, just upriver from Lake Granbury.
"Mr. Lipsky turned on the valve at the top of the wellhead and said, 'Watch this,'" Scott recalls. Water gushed from the wellhead. A few flicks of a lighter, and water and flame poured forth together.
Scott, a good-natured but level-headed hulk, ordered him to snuff it out immediately. Lipsky turned, and the growing flame swept the wellhead, accidentally igniting a second fire. "That got us both a little stirred up there because now we got an uncontrolled flame coming from the top of the water well," Scott says. "That was the first time I'd ever seen that."
Scott radioed his assistant fire marshal and told him to bring his tools from downtown Weatherford, a 30-minute drive down two-lane roads. He needed to see just how much gas was coming from Lipsky's well.
"We got within 20 feet of that well and the hydrocarbon detector was going bonkers, full indication," Scott says. "I couldn't get any closer because you risk burning up the sensors. This is in open air. It's not like we were in a house."
Instead, Scott used a less sensitive monitor to gauge gas concentrations. "Anything above 5 percent, we start getting nervous. It went to 12 or 14 percent in nothing flat, which is definitely within the explosive range."
There was little Scott could do. Lipsky had a theory for the source of his gas, and the culprit was beyond Scott's reach. Lipsky had checked the Texas Railroad Commission's Web site and learned that two natural gas wells, drilled horizontally, ran practically beneath his home. "We really can't touch those guys at all," Scott says.
So, Lipsky contracted with a consultant out of Flower Mound. Alisa Rich of Wolf Eagle Environmental considered herself a watchdog of the gas production industry. She's known to cruise the backroads of Denton and Tarrant counties with a camcorder in hand, watching for oilfield spills and leaks, often proclaiming that "the wolf is on the prowl." Lipsky hired her to test his water alongside an investigator from the Railroad Commission, a powerful regulatory body that oversees the state's oil and gas industry.
Even before she had finished sampling on August 17, 2010, Rich was worried. Lipsky's tap water effervesced like Alka-Seltzer. It made her glass sampling containers slippery, as though it had been spiked with lubricant. More than a week later, lab results bolstered her suspicions: His well had been polluted by nearby fracking operations, she believed. Rich advised Lipsky to stop using the water. His wife, Shyla, and their 18-month-old, and six- and seven-year-old children should stay away, she told him. Gas could be building up inside the house. Lipsky moved into the guesthouse and stopped using the water. His wife and children extended their routine summer stay with her parents in Graham.
Meanwhile, the results of water quality tests performed by the Railroad Commission came in. They found levels of benzene, a known carcinogen, above the threshold limit for drinking water. Yet the agency did not act, nor did it have an answer yet for the fire Lipsky could ignite. But he and Rich believed they did: It could be no coincidence, they thought, that the two gas wells beneath his home had been fracked just months before Lipsky first noticed his failing pump. Dissatisfied with the commission's pace, Rich reached out to a contact with the U.S. Environmental Protection Agency. With a single phone call, another kind of blaze was set.
From the moment the documentary Gasland injected fracking into the public consciousness, the image of flaming tap water was its grim totem. YouTube is populated with videos of people near gas drilling sites in New York, Pennsylvania, Colorado and Texas holding cigarette lighters to drinking water giving off ghostly flares — an inchoate indictment of drilling more anecdotal than scientific. But they've gained currency among aggrieved landowners and environmentalists. The cause, they believe, is a controversial method of gas extraction known as hydraulic fracturing, or "fracking." It involves the injection of millions of gallons of water, sand and toxic chemicals into shale formations, like Texas's Barnett Shale, as deep as a mile beneath the surface at pressures reaching 15,000 pounds per square inch. The goal is to shatter the rock with a blast of fluid and release natural gas from its pores. It's not a new technology, but the combination of hydraulic fracturing and horizontal drilling is, and it has transformed vast but unprofitable gas-bearing formations into an energy boom, one President Barack Obama says could fuel America for a century.
Despite the videos and hundreds, if not thousands, of voices shouting above the din of shale gas plays everywhere, the true causes of the flaming water were unverified, uncorroborated or, following an energy company settlement for damages, confidential. Officially, the fracking process had an untarnished record. Some six or more years into the boom, even the EPA had yet to fully study its potential impact on groundwater.
When the agency investigators got a call about Lipsky's well, that all changed. The EPA thought it had the smoking gun that validated environmentalists' worst fears. Texas officials couldn't have disagreed more, and a deep-pocketed energy company would stop at nothing to prove the feds wrong.
On October 26, 2010, the EPA sampled water and gas from Lipsky's well and took samples from the two gas wells owned by Fort Worth-based Range Resources near his home. Three weeks later, the agency advised Lipsky not to use his water. The EPA was about to make a finding that would enrage lawmakers and the energy industry. Range, the agency agreed, had contaminated Lipsky's well.
On December 7, 2010, EPA regional administrator Al Armendariz sent an e-mail to anti-fracking blogger Sharon Wilson (known as Texas Sharon), Tom "Smitty" Smith of Public Citizen and others. "We're about to make a lot of news."
Over the Railroad Commission's protests, the EPA issued an incredibly rare order derived from its authority under the Safe Drinking Water Act. In a first for the Texas oil and gas industry, federal regulators declared that Range's wells had endangered the health of Lipsky and his neighbor, an oil and gas man named Rick Hayley. The EPA ordered the company to survey all private water wells within a 3,000-foot radius of its gas wells; provide replacement water; identify the contamination pathways to Lipsky's well; and stop them.
The EPA finding that most rankled the Railroad Commission and Texas politicos was this: "EPA has determined that appropriate State and local authorities have not taken sufficient action to address the endangerment described herein and do not intend to take such action at this time..."
The order made national headlines.
The response was immediate and flavored with anti-big government rhetoric. "This is Washington politics of the worst kind," Railroad Commission member Michael Williams thundered. "The EPA's act is nothing more than grandstanding in an effort to interject the federal government into Texas business."
Commissioner Elizabeth Ames Jones, who was about to replace commission Chairman Victor Carillo, said her agency would "not deny due process to the parties involved in spite of the false allegations made against our investigative actions."
The next day, the Railroad Commission scheduled its own hearing to determine whether Range "caused or contributed" to the contamination of Lipsky's well. Beginning January 19, 2011, over the course of two days, Range spent some $3 million — according to the company's figures — amassing evidence and hiring experts to prove its case. Both the Lipskys and the EPA declined to participate.
After nearly half a year spent waiting for the commission to act, Lipsky's faith in it was shaken.
"If I went to the Railroad [Commission], I didn't have a chance," he later told a reporter. "The gas companies own the Railroad Commission."
Lipsky might have had good reason to believe that. The state's Sunset Advisory Commission was about to recommend abolishing the Railroad Commission because its elected structure "[raised] potential questions of conflicts between the commission as a regulatory agency and the oil and gas industry it regulates..."
For example, Range Resources had financial interests in several oil wells owned by a company named Venus Exploration that, according to U.S. Securities and Exchange Commission filings, applied for Chapter 11 bankruptcy protection in 2004. Range Chief Executive Officer John Pinkerton was listed as a director of Venus. So was Will Jones, the husband of the Railroad Commission's chair, Ames Jones. Ames Jones's father, Eugene Ames, was Venus's CEO. Ames Jones was appointed to the Railroad Commission by Governor Rick Perry in 2005.
Today, Ames Jones is a candidate for the Texas Senate. When asked about the potential conflict of interest, her campaign released this statement from Ames Jones: "There was no conflict of interest. I had no interest in that company, financial or otherwise, ever. That company investing in my father's company, years before I was on the RRC, is absolutely no grounds for recusal, which is clear in RRC guidelines.
On March 22, 2011, Ames Jones and the other commissioners issued their conclusions: The gas in Lipsky's well was naturally occurring. Range was absolved.
The commissioners clearly understood what it would have meant to Range, to the entire industry, if it had found that fracking contaminated groundwater. It could have been the proof the anti-fracking movement seeks.
"We owe an enormous thank-you to Range Resources..." said Commissioner Williams, who is resigning his post this month to run for Lloyd Doggett's seat in the U.S. House. "The public may have a different view of natural gas drilling in the Barnett if the EPA had picked on...some small operator who didn't have the financial resources and did not have the sense of integrity to fight back."
Texas House Energy Resources chairman Jim Keffer, referring to his fellow state legislators, said to the commissioners that day "...I can guarantee you there was a collective sigh of relief when the preliminary report came out several weeks ago on the findings of your staff." The EPA thought it had found a "smoking gun." Instead, "they have fallen on their face."
But this hydrogeological whodunit was far from over.
Lipsky did not respond to repeated messages left for comment. His wife, Shyla, referred all press inquiries to their attorney, Al Stewart, who also declined to comment. But based on court filings and interviews, it's clear that Lipsky once led a peripatetic existence before settling down in his dream home on the banks of the Brazos.
After graduating from high school in Wisconsin, he took off to Vail, Colorado. A year later, he enrolled at a branch of the University of Wisconsin, followed by a small technical college, where he studied paper chemistry and criminal justice. After about a year, he got a job selling insurance for Prudential and moved to Pennsylvania in 1993. For the next six years, he bounced from state to state selling insurance and tending bar. In 1999, he moved to Euless, near Dallas, and began selling mortgage programs that allowed people to split their monthly payments. A year later, he moved to Eagle Mountain Lake, and finally to Weatherford, where he settled down with his wife.
His company, Lipsky & Associates, was processing more than $1 billion a year in electronic mortgage payments for J.P. Morgan Chase, according to its Web site — doing well enough to allow him to purchase a house and some seven and a half acres in the gated enclave Silverado-on-the-Brazos.
He bought more land along a wide Brazos inlet and built, according to appraisal records, an 1,800-square-foot cabin and boat dock. Because there were no municipal water lines, in 2005 Lipsky had a well drilled into the Trinity Aquifer. According to the driller's report, the well pumped good, clean water. In 2008, he sold his first Silverado home and moved his family into the cabin, replatting and joining portions of the old property into nearly 15 acres of riverfront real estate.
Then Lipsky began construction of his dream home. He purportedly spent millions over the course of several years in construction and property improvements, even installing a state-of-the-art water filtration system to disperse the rotten-egg scent of sulfur typical for this portion of the aquifer.
In September 2009, the Lipskys moved into their new home.
On August 17, 2010, surrounded by Rich, fire marshal Scott and two representatives of the Railroad Commission, Lipsky held a green water hose aloft. "You can see it. Look at the gas. See it? Look at the trees," he said, as Rich caught the scene on tape. "C'mon, fire department! Light it!"
After the last time, Scott demurred. Even without a flame, the onlookers could see a rippling stream of gas shimmering in the air. "The longer that runs, the worse that gets," he said.
"Well," one of the commission reps began, "the column of water is dropping." The pump, he explained, was working harder as the well depleted itself, drawing more gas.
"If you leave [the gas vent on the wellhead] open, your pump will work better," said the other.
"It will work better?" Lipsky replied, incredulous. "It's been open this whole time, but I'll leave it open. That seems kinda dangerous, doesn't it?"
"Could be," the commission rep conceded. "Could be."
As Rich would later recall, she didn't need to get close to the hose to know that the air around them was suffused with gas. "The whole place smell(ed)," she said. "I had to walk away, the gas was so strong."
(Later on, Rich's technician, who is also her son, was overcome by gas fumes as he sampled water from the top of Lipsky's 5,000-gallon tank.)
"I'm not kidding," Lipsky said, appraising the stream of gas. "Look at that!"
"I just think the gas is getting out one way or the other," the commission rep offered.
"Well, it does," Lipsky replied, and closed the gas vent. Before their eyes, fluid around the wellhead, coupling and bolts began bubbling furiously as gas pressure built up inside.
He reopened the gas vent and placed his palm over the hose nozzle, feeling the gas forced out.
"I understand if you drill a well and hit gas, but I drilled this well five years ago and now it has gas," he said. "Something happened to cause this."
On June 20, 2011, the Lipskys sued the developer of Silverado-on-the-Brazos and Range Resources in a Parker County district court for contaminating their well. To prove it — and to counter the experts who swayed the Railroad Commission that spring — Steve Lipsky hired petroleum engineer and former commission hearing examiner Buddy Richter.
Richter had his work cut out for him. Range — a company with $9 billion in outstanding shares and some 500,000 leased acres across the country — had almost unlimited resources. Among the experts Range brought before the Railroad Commission were petroleum geochemists trained at Harvard and the Massachusetts Institute of Technology; Halliburton directors of technology and microseismology; and a go-to hydrogeologist who contracts for municipal water districts.
To create a crack big enough to reach from the Barnett Shale, more than a mile below the surface, to Lipsky's 200-foot-deep well would take hundreds of thousands, if not millions, of barrels of fracking fluid, Halliburton director Norman Warpinksi testified at the hearing.
Petroleum engineer John McBeath said integrity tests of the casing and cement lining in Range's wells, designed to keep fracking fluid and gas from the aquifer, proved there were no leaks. McBeath said he believed Lipsky's problem was natural. After all, he added, a well drilled at around the same time as Lipsky's, some 900 feet away, hit gas immediately.
Even before that, a nearby public water system, Lake Country Acres, had signs on its water storage tanks that read "No Open Flame," dating to around 1995. Both produced gas years before Range drilled either of its wells.
At least one neighbor's water well had been drilled so deeply that it penetrated a natural gas-bearing formation called the Strawn. This well, he testified, was a more likely conduit for the gas in Lipsky's well.
Dr. Charles Kreitler, a hydrogeologist, speculated that depletion of the aquifer to keep the lavish landscaping alive in the Silverado development could be pulling water and gas from the Strawn formation directly beneath it.
The testimony from Mark McCaffrey, the MIT-educated petroleum geochemist with Weatherford Laboratories, was the coup de grace Range sought. McCaffrey believed that the gas in Lipsky's well was from the Strawn, not from the deeper Barnett Shale formations Range tapped. Lipsky's, his neighbors' and Range's gas all had one thing in common: They were thermogenic, created during the breakdown of organic matter by subsurface heat. But Lipsky's gas had higher nitrogen levels than Barnett Shale gas and was nearly identical to Strawn gas.
Based on the timing of Lipsky's water problems and the thermogenic nature of the gas in his well, the EPA assumed they must have been the same. "This would be like using wings to separate birds from bats," he said.
If gas from deep within the Barnett Shale was leaking up through Range's wells and into the aquifer, McCaffrey said he would have expected to find it in a port at the top of Range's well. There was indeed gas pressure there, but McCaffrey said gas fingerprinting proved it was merely shallow gas "weeping" into the uncemented portion of Range's well.
Mother Nature, McCaffrey assured the commissioners, was caught red-handed. In an intra-agency e-mail, even EPA's own geochemist had warned that gas-bearing formations other than the Barnett Shale needed to be ruled out before the agency fingered Range.
McCaffrey might have been surprised to learn that Lipsky's expert, former Railroad Commission examiner Richter, agreed that Range production gas from the Barnett Shale was not the source of the contaminated water, but that's beside the point, he contends.
The commissioners ignored the fact that from roughly 400 feet below the surface to more than 4,000 feet, Range's well was uncemented, exposed to thousands of feet of gas-bearing earth above the shale. Somehow, Richter believed, that gas had seeped up Range's well and ultimately into Lipsky's water.
Under questioning by commission examiners, McCaffrey admitted that he hadn't considered that possibility. He also conceded that the gas sample the EPA collected from Lipsky's well was so similar to Range's that it was all but impossible to separate them.
Why, Richter asked, were other gas wells in the area cemented up to 600 feet deep? Why had nearby abandoned wells been plugged to a depth of 1,000 feet? What were they trying to keep out of these wells? It was the shallow gas, he surmised.
He pointed to the testimony of Larry Peck, the man who drilled Lipsky's well. Said Peck, "I might add that there wasn't any gas in [Lipsky's] well at the time I drilled it."
Testimony before the Railroad Commission also seemed to ignore the presence of unacceptable levels of benzene in Lipsky's water. Rob Jackson, a Duke University researcher and professor of biogeochemisty, says that benzene is naturally occurring, particularly in aquifers near gas-bearing formations, but when it's detected above safe limits that's a "red flag" something is wrong.
In an interview, Range's attorney brushed off the presence of the cancer-causing compound, noting that in other samples, benzene was found slightly below hazardous levels.
"It's really speculation about where some of those kinds of things come from," says attorney Andy Sims. "But there is a natural explanation."
As for Richter's explanation, Sims characterized it as ridiculously byzantine. "Mind you, the well is cemented down to 400 feet," he began. Gas seeping into Range's wells would "have to migrate through the cement and take a right-hand turn and create pressure in the Strawn that would somehow push back half a mile to get into the Lipskys' water well."
But Lipsky's experts were equally doubtful of the commission's conclusions. They were rushed, Richter testified in a later deposition, especially for a case of this complexity and importance. Yet the proposal for decision was entered less than a month after the case record was closed. "I have never seen a two-day hearing with this many exhibits to where a proposal for decision was issued so expeditiously," he said. The hearing, Richter believed, was designed to send a message to the EPA. "In the 20 years that I've stood at that podium and presented cases to the commissioners, I can recognize when they're political. ... I think they were trying to make a statement: EPA, go home."
If the EPA's investigation had been flawed and the commission's ruling preordained, Richter would later admit that his own investigation was limited to a review of the commission hearing transcript. He conducted no independent testing of his own.
As the Lipskys' case against Range proceeded, the truth remained buried deep underground.
Before the combination of hydraulic fracturing and horizontal drilling opened up the gas formations a mile below the earth's surface, no one expected another drilling bonanza in Texas. Then the industry found out about the shale dispersed over 5,000 square miles of North Texas. Turned out, that shale had a sweet spot, a pocket where a fracked well would flow and flow. That spot was in Parker County.
Weatherford, the county seat, was once a tiny ranch town, but between the 2000 and 2010 censuses, its population grew by 25 percent. Two-lane roads grew clogged with well-service trucks headed out into the county, and with big rigs hauling lengths of stacked pipe and fracking fluid. With the traffic came money like Parker County had never seen. Its tax rolls have increased by 33 percent since the boom began around 2005, chief appraiser Larry Hammonds says.
Chain fast-food restaurants, big-box stores, ubiquitous road construction crews and auto dealerships with shiny, late-model 4X4s sprouted. At night, the lights of derricks burned on the horizon like low-hanging stars.
The explosive growth came with a price.
Landowners quickly learned that in Texas, whoever possesses the mineral rights below their property has the upper hand in negotiations. A driller with a lease to mineral rights can't be stopped, nor can the diesel rigs rumbling at all hours, pulverizing roads.
Fire Marshal Shawn Scott struggled to keep an eye on an industry that appeared to overwhelm the state. "[The Railroad Commission's] database...couldn't keep up with the number of wells going into our county," he says. "So, other than the fact that we'd go out and see derricks set up and see guys drilling, it'd be months before the permits would hit the Web site so we could see what was going on."
For every handful of reputable operators, Scott found, there was always one with little regard for the county or its inhabitants. He lost count of all the big rig rollovers he's seen. Worst-case scenario is when fracking fluid, a slurry of brine, surfactants, acids and benzene-laced gas liquids, is involved. His men wore HAZMAT suits during cleanup.
He also has investigated the dumping of used fracking fluid into county ditches, by far a cheaper method of disposal than the state-approved sites. "That's hard to track down," he says. "They don't really leave anything behind other than a trail of dead vegetation."
Easier to locate was a truck hauling sulfuric acid with an unsecured tank lid. Motorists who saw the paint bubbling on the hoods of their vehicles called it in.
Last summer, as drought seared the state and wildfires exploded, he caught an operator preparing to toss a gasoline-soaked rag at a vent to burn off escaping gas. "I got houses all the way around this thing. Dense vegetation, heavy trees all around it. It's prime for a grass fire.
"I understand that we need to produce our own energy locally, and I have no problem with that. But we can do it as good neighbors to the folks around it."
Some seven months after the Lipskys sued Range in Parker County district court, Judge Trey Loftin dealt their cause a crippling blow. He concluded he did not have jurisdiction to hear the lawsuit. Their complaint was challenging the findings of the Railroad Commission, and only the Travis County district court in Austin could hear such a challenge, he ruled. Unfortunately, the deadline to petition that court had passed.
A little more than two weeks later, on February 16, 2012, Loftin, who is up for re-election, issued a second, devastating ruling against the Lipskys. Though they could not sue Range in his court, Range could countersue the Lipskys. Range argued that Lipsky and Rich were participants in a civil conspiracy to sully Range's name by making false statements to the media and providing a "misleading" video of a flaming hose to the EPA. It was all a hoax, the company said.
Loftin concluded that a jury might agree. "This demonstration was not done for scientific study but to provide local and national news media with a deceptive video, calculated to alarm the public into believing the water was burning," Loftin wrote. Lipsky, he reasoned, could not set his water on fire, as he so often claimed. The judge believed Lipsky attached the green garden hose to the gas vent to intentionally "alarm the EPA."
His order disregarded the photo filed in evidence of a well-service tech flaring both gas and water from Lipsky's well.
Even Range's own expert, petroleum engineer McBeath, said in his testimony that the water well company had attached the hose to burn the gas off further from the wellhead. The purpose was to avoid an accidental fire, not to conspire against Range. After all, the EPA hadn't based its order on a video. The agency's investigators had seen it all for themselves.
Range's countersuit, Lipsky claimed, was intended to do nothing more than "bludgeon the Lipskys into silence, to punish the Lipskys and others for exercising their right to engage in free speech in public statements..."
The court, they wrote, was now Range's "weapon of choice."
To allow it to proceed, they argued, Loftin risked violating a law passed during the 82nd Texas Legislature known as the Anti-SLAPP (Strategic Lawsuit Against Public Participation) Act, designed to protect whistleblowers against bogus litigation.
"The counterclaim is one that falls within the definition of the SLAPP statute, because it deals with a citizen who is petitioning the government for a redress of grievances," says Laura Prather, the Austin First Amendment attorney who led the legislative charge for the bill. "In this particular instance, the citizen was reaching out to the federal agency that governs this environmental issue, then got sued for doing so."
The law does not, she warned, give Texans carte blanche to defame. The 2nd Court of Appeals of Texas in Fort Worth is considering Lipsky's claim under the Anti-SLAPP Act.
But Range wasn't just alleging defamation. The company accused Lipsky of fraudulently crying contamination to reduce his property taxes. Indeed, just days after he filed suit against Range, Lipsky petitioned the Parker County Appraisal District for a reduction in his taxable valuation, citing unusable water. "You know, we have three kids," Lipsky told the appraisal board. "After what happened ... it's kind of tainted. And if we could just simply get our money back that we put into it, we would leave."
A board member asked if that was what he hoped his lawsuit against Range would accomplish. "Yeah. Yeah," Lipsky replied. That day, the board agreed to reduce the value of Lipsky's property and home from approximately $800,000 to $300,000.
Range saw motive, and to prove Lipsky was badmouthing the company to the press, it went after any reporter he had ever spoken to, and almost anyone who'd ever written about his water well. Subpoenas crisscrossed North Texas, on their way to WFAA Channel 8, the Fort Worth Star-Telegram, CBS 11 and anti-fracking activist Wilson.
If the Lipskys had any doubts about how rough Range was willing to play in order to protect its interests, they were soon dispelled. This was the company whose spokesman, Matt Pitzarella, Wilson caught on tape at an oil and gas convention in Houston saying Range employed former military "psy ops" personnel.
Range was the first company to realize the Marcellus Shale, a massive gas-bearing formation sprawling across the Northeast, was a driller's playground. When Range ran into stiff local resistance in the small town of Mount Pleasant, Pennsylvania, the company sent a letter to residents without drilling leases, laying out the advantages of the company's proposed drilling ordinance. It closed on a conciliatory note by stating that Range was confident it and the township could work hand in hand.
A second letter, to residents with leases, who stood to gain from gas royalties, had an altogether different tone. In it, Range claimed that its attempts to work with the township had been rejected, and it would be moving on to friendlier environs. In the meantime, it said, the company was considering legal action against the township. Unlike the other letter, this one advised the lease-holding residents to attend a townhall meeting Range was hosting.
In online videos of the meeting, a folksy, cotton-topped octogenarian woman railed spitefully against the town managers. Few of the residents would have recognized her, though, because she wasn't from Mount Pleasant, according to local news reports. She was from Cecil, about an hour's drive west. She can be found in one of Range's gauzy, Marcellus Shale testimonials, where she says she'll use her royalties to put her grandchildren through college.
In Parker County, Range was spoiling to prove that it and fracking were without blame. If the company could win again, the victory would represent another shiv driven into the popular perception that the industry's underground alchemy was poisoning drinking water.
Late last month, a surprising turnabout by the EPA — the agency that had been Lipsky's sole ally and the weight behind his claims — helped Range drive home its blade.
After spending more than a year in a federal court battle with Range to force the company to comply with its endangerment order, on March 30, the EPA made a stunning announcement: It was dropping its order against the company.
"Resolving the lawsuits with Range allows EPA to shift the Agency in this particular case away from litigation and towards a joint effort on the science and safety of energy extraction," an EPA statement read. "EPA and Range will share scientific data and conduct further well monitoring in the area, and Range will also provide useful information and access to EPA in support of EPA's inquiry into the potential impacts of energy extraction on drinking water."
In exchange for EPA dropping the order, Range agreed to sample 20 private water wells surrounding its pad site every three months for a year. Neither the agency nor the U.S. Department of Justice would elaborate further.
In a letter from Range's attorney to the EPA, the language makes it clear that a deal was cut. Company spokesman Matt Pitzarella, however, insists that the agency's move wasn't the result of a quid pro quo. More testing, he claims, is simply the right thing to do. "The EPA's decision to withdraw only underscores that this is not an issue involving Range Resources," he said.
Before the ink had even dried on the joint motion by Range and the EPA to drop the suit, the Railroad Commission members were lambasting the agency — along with President Obama's allegedly "anti-fossil fuel agenda" — and calling for the head of the regional EPA administrator who oversees Arkansas, Louisiana, New Mexico, Oklahoma and Texas.
Al Armendariz and his regional office, Commissioner David Porter charged, were "guilty of fear mongering, gross negligence and severe mishandling of this case. I hope to see drastic changes made in the way the regional office conducts business in the future – starting with the termination of Al Armandariz (sic)."
But the EPA's decision to withdraw its endangerment order wasn't the first time it had shifted from hardline to conciliatory. Little more than a month since Obama unveiled his "all of the above" approach to domestic energy development during his State of the Union address, the agency agreed to conduct more testing after blaming fracking for the contamination of groundwater in Pavillion, Wyoming, in an initial report.
State environmental regulators in Pennsylvania blamed Cabot Oil and Gas for contaminating water wells in Dimock, now a symbolic flashpoint between anti-fracking activists and the industry. The EPA vowed to test some 60 wells and provide replacement water, but in its preliminary results last month, the EPA said it had found no evidence that Cabot was responsible. Water Defense, an environmental group formed by actor Mark Ruffalo, claimed the testing detected "dangerous" levels of methane and residents were "living inside a bomb that could explode any moment."
Whether the agency had exacted all the concessions it needed from Range in Parker County and chose to end needless litigation, or it realized it could potentially suffer a humiliating defeat in federal court, its withdrawal tore the backbone out of Lipsky's claim. He is now alone in a courtroom brawl against an industry juggernaut with much heavier hands.