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Fracing Case Goes to Texas Supreme Court

Steve Lipsky and his wife Shyla became famous as Texas landowners who claimed they could set their water on fire–and they alleged this was due to methane contamination from nearby hydraulic fracturing. The couple sued Range Resources who operated a well near their house in Weatherford, Texas. The Lipskys claimed they noticed problems with their water after Range drilled two natural gas wells near their house in 2009.The Environmental Protection Agency, without any scientific basis whatsoever, concluded that Range had caused or contributed to the water contamination. The Railroad Commission of Texas did actual did scientific testing and determined that the methane came from a shallower rock formation than the one drilled, and allowed production at the wells to continue. Many people do not realize that methane occurs naturally in many water deposits, but is not drawn into the water pump until the water level falls below a certain level. With lots of fanfare, the EPA sued Range Resources in federal court for the alleged contamination. That suit was later quietly dismissed in its entirety.

Range sued the Lipskys and another person, Alisa Rich, for civil conspiracy, aiding and abetting, defamation, and business disparagement over their claims about fracing contaminating their well. The case is In Re: Lipsky. The Lipskys and Ms. Rich filed motions to dismiss all the Range claims. The trial court in Parker County, Texas denied the motions.

The Texas Second Court of Appeals decided that the trial court “clearly abused” its discretion in denying the Lipsky’s motions to dismiss all claims and in ruling that they had no remedy to appeal. The appellate court ordered the trial court to enter an order dismissing Range Resource’s claims based on conspiracy and aiding and abetting. The appellate court left pending Range’s claims of defamation and business disparagement. You can read the appellate opinion here.

The Supreme Court of Texas heard oral argument on December 4, 2014. The issues that will be determined by the Supreme Court are: (1) whether the Texas Citizens’ Participation Act requires heightened proof – clear and specific evidence – of each essential element of a claim under that Act, and if so, (2) whether Range presented clear and specific evidence of defamation and business-disparagement claims.

Given the widespread use of fracing, and the increasing proximity of fraced gas wells to residential areas, this will be an important decision by the Texas Supreme Court. If the Lipskys had a legitimate evidentiary basis for their claims, they should not be the subject of a retaliatory lawsuit. On the other hand, if they did not have a legitimate basis for their claims, then they should be held accountable for any damage their unsupported claims may cause.

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