Judge Cites Plaintiffs’ “Deceptive Video” and Allows Range Resources’ Counterclaim to Proceed

On February 16, 2012, State District Judge Trey Loftin, sitting in the 43rd State District Court in Weatherford, Texas, denied plaintiffs’ motion to dismiss Range Resources’ counterclaim.   Previously, on January 27, 2012, Judge Loftin dismissed the plaintiffs’ complaint, which sought $6.5 million in damages. In its counterclaim, Range Resources seeks $4.2 million in actual damages, in addition to punitive damages to cover both legal fees and damage to its reputation.

This case stems from an allegation by Steve Lipsky and Shyla Lipsky that their water well was contaminated with methane due to improper casing and cementing of Range’s natural gas wells in the Barnett Shale.

Specifically, the Lipskys’ alleged that Range Resources failed to “cement the surface casing of the Butler and Teal wells to a depth of at least 1,000 feet[.]”  In December 2010, the U.S. Environmental Protection Agency (“EPA”) issued an order against Range, based on claims that Range’s gas wells either caused or contributed to the contamination of the water wells.  Range Resources is still trying to have this order dismissed.

In March 2011, after a two day evidentiary hearing, the Texas Railroad Commission found that the gas in the water wells was not due to Range’s wells, but a migration of gas from the Strawn formation, a formation lying only a few hundred deep below the surface and immediately below the aquifer.  The geological formation from which Range is drawing natural gas is a mile below the Strawn formation and the aquifer. 
Among other things, Judge Loftin cited a “deceptive video” as a reason not to dismiss Range’s counterclaim.  View the YouTube video titled “Hydraulic Fracturing turns gardenhose to flamethrower”.

Judge Loftin was concerned that the garden hose shown in the video was attached to the water well’s gas vent, not a water line as suggested to the media.  He wrote: “This demonstration was not done for scientific study but to provide local and national news media a deceptive video, calculated to alarm the public into believing the water was burning.”

The Lipskys intend to appeal the order. Range has indicated an intention to conduct discovery to determine the extent to which the Lipskys’ conduct influenced the EPA.

This posting was prepared by L. Poe Leggette (pleggette@fulbright.com or 303 801 2746), and Jennifer Cadena (jcadena@fulbright.com or 303 801 2755) of the firm's Energy Practice Group.