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An Analysis of the Latest Federal Debaucle Analyzed by a Texas Oil and Gas Lawyer

As a Texas oil and gas attorney, I have spent 33 years observing the Texas Railroad Commission, the agency in Texas that regulates oil and gas drilling, production and pipelines (among other things). In my experience, the Railroad Commission is tough and efficient. I have never seen them act as a rubber stamp for the oil and gas industry. Each time I have assisted a client with a complaint to the Railroad Commission, I have been pleased with their grasp of the situation and their sensitivity to consumers. In my experience (and even though I don’t always agree with them), they do a good job.

The demonstrable competency of the Railroad Commission is one reason that the most recent intrusion by the federal government into Texas’ affairs is especially disturbing. I am speaking, of course, of the emergency order issued on December 7, 2010 by the Environmental Protection Agency (the “EPA”) to Range Production Company, forcing a cessation of it’s activities in Parker and Hood Counties, Texas. This latest arrogance by the feds is unconscionable. In support of my statement, (and lest you think I am being extreme here), please consider the following:

Item One: The EPA order shuts down legitimate business operations, puts people out of work, and interrupts the production of a clean and environmentally sound fuel. So, you might assume the EPA had some evidence for what they are doing. You would be wrong.The EPA has apparently viewed the “documentary” (and I am using that term very loosely) called “Gasland” and taken it for fact. Certainly, many homeowners who live near wells have watched it, and probably thought it was factual. The truth is that most of what is depicted in this film is patently false. For example, in at least two scenes, homeowners in Colorado are shown lighting their tap water on fire, presumably due to contamination from gas well drilling, fracking or production.The truth is that these occurrences were thoroughly investigated by the Colorado Oil and Gas Conservation Commission (the “COGCC”). The result of the investigation? There was methane in the water from naturally occurring methane deposits. The drilling of, fracking for and production of gas from wells in the vicinity had nothing, I repeat, NOTHING, to do with it. You can read a summary of the COGCC’s report here.

Item Two: Interestingly, the EPA website currently says nothing about this order. In a copy of the order that I obtained through other sources, the EPA does not describe any evidence of the alleged contamination. Instead, it puts the burden on Range to prove that it did not cause the contamination. Whoa! What happened to innocent until proven guilty? What happened to the burden of proof belonging to the government prosecutor? Instead, the EPA has turned our federal and state constitutional protections on their head and puts the burden on Range to prove it is not guilty!

Item Three: The EPA order claims it was issued under authority of the Safe Drinking Water Act. However, that law gives the EPA power to act only if state regulatoriy agencies are unable or unwilling to act. In the case of Hood and Parker Counties (and other counties in the Barnett Shale area), the Railroad Commission is actively involved in testing and monitoring of water wells. To date, their testa show no impact whatsoever on any water well by gas drilling or fracking or production activities. This data was supplied to the EPA! Not to be deterred by the facts, it appears that the EPA decided to issue an order anyway, even though their order is not authorized by the very law they seek to enforce.Item Four: In my experience, contamination of water wells in Texas by oil and gas drilling, fracking or production is pretty rare. Consider this: most potable, “sweet water” reservoirs are found at 300 to 500 feet or so, and occasionally as deep as 1000 to 2000 feet. Gas wells, in contrast, are drilled much deeper. In fact, the two wells that are the subject of the EPA’s order, the Butler Gas Unit No. 1H and the Teal Gas Unit No. 1H, are drilled to 5852 and 5866 feet, respectively. As a result of this difference in depths, fracking simply does not occur anywhere near potable water reservoirs. In addition, before they drilled, the operator had to obtain a certification from the Texas Commission on Environmental Quality (the “TCEQ”) as to the depth of water reservoirs in the area where the drilling is proposed. As part of the drilling process, the operator must then construct a concrete jacket around all portions of the well bore that pass through all depths that have water reservoirs. This concrete jacket is a back up in the event the casing and the tubing (two other layers of protection) ever leak.

Item Five: There are naturally occurring pockets of methane and other gases all over the country. In some cases, these gas pockets co-exist with water reservoirs. When a water well is first drilled into a mixed gas/water reservoir, the methane does not mix with the water. The well owner gets only sweet water at ground level. However, as the well is used and the water table in the reservoir is lowered, the methane can and does mix with the water and is pulled up the well bore along with the water. At that point, you can indeed light your tap water. These pockets of gas were from the same source and formed with the same type of processes that created oil and natural gas deposits over geologic time. These reservoirs of methane and other gases have nothing to do with fracking or gas production.

Item Six: There seems to be a bad case of “Post Hoc Fallacy” going around. As the Logical Fallacies website explains: “(t)he post hoc fallacy is committed when it is assumed that because one thing occurred after another, it must have occurred as a result of it. Mere temporal succession, however, does not entail causal succession. Just because one thing follows another does not mean that it was caused by it”.

I represent only royalty owners, working interest owners and surface owners. I do not represent oil and gas companies.Thus, I am not a defender of oil and gas companies, per se. However, I find it extremely disturbing that the Obama Administration has developed a pattern of using federal agencies to enact its agenda, rather than allowing our elected representatives to make these decisions. The practice is especially disturbing when Congress has chosen not to act on an issue, such as “cap and trade”, and yet the current administration simply uses agencies like the EPA to obtain the same result through presidential fiat.

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