Tainted Well Prompts Free Speech Dispute

Steve Lipsky’s tainted water well had already stirred national debate about the impacts of oil and gas production. Now it stars in a free speech dispute that has landed in Texas’ highest court – the biggest test of a state law meant to curb attempts to stifle public protest.

So much methane has migrated into the well on Lipsky’s Parker County estate that he can ignite the stream that flows from it with the flick of a barbeque lighter. The Wisconsin transplant blames the phenomenon on nearby gas drilling in the Barnett Shale. In the past three years, he has shared those suspicions in Youtube videos, the film Gasland Part II and in news reports.

Range Resources, the accused local driller, has maintained it is not to blame. In 2011 it filed a lawsuit against Lipsky, his wife Shyla Lipsky and Alisa Rich, a toxicologist the couple hired to test their well. The $3 million suit alleges the three conspired to “defame and disparage” Range and force federal regulators to intervene. Range representatives did not respond to interview requests.

In 2010, the Environmental Protection Agency charged Range with tainting the well and ordered the company to provide drinking water to Lipsky and a neighbor. But the agency withdrew that order after the Railroad Commission of Texas said Range was not linked to the contamination. 

Following more complaints from Lipsky and his neighbors, the commission took a second look at the contamination. Its report last May said evidence was “insufficient” to implicate the driller. The methane “may be attributed” to unrelated processes, including migration from the shallower Strawn formation, which lies just beneath the aquifer, the report concluded. “Further investigation is not planned at this time.”

Independent scientists are still studying the neighborhood's wells.

Attorneys for the Lipskys and Rich have asked courts to dismiss the defamation suit, pointing to a 2011 tort reform law intended to protect free speech. The law opens the door for the early dismissal of meritless legal claims filed to intimidate critics — so-called Strategic Lawsuits Against Public Participation, or SLAPPs, that seek to quiet opponents by drowning them in legal fees.

“It’s them trying to intimidate other people, meaning, ‘How dare you ever accuse us of something like this?’”  Lipsky, who pays $1,000 a month to truck in water from nearby Weatherford, said of Range.

Range has taken issue with a number of Lipsky’s assertions, including that the company contaminated the well, that Lipsky could literally light his water on fire (rather than the gas flowing within the water), and that the company treated the Lipskys like “criminals.”

After a lower court allowed Range’s lawsuit to proceed, the Second District Court of Appeals in Fort Worth ordered that court to set aside all charges except the defamation and disparagement allegations against Steve Lipsky. The court said Range provided no clear evidence that the others had conspired with him.

Now, the Texas Supreme Court will weigh in, with oral arguments set for Dec. 4. First Amendment lawyers, who say lower courts have inconsistently applied the law, will watch closely.

“It’ll be nice if the Texas Supreme Court could provide us with a nice clear interpretation of that evidentiary standard,” said Alicia Calzada, an associate at the law firm Haynes and Boone.

In court documents, Range argues that the “case is important because it illustrates that dangerous and chilling effect” of the 2011 law when it is “misconstrued or misapplied.”

Joe Sibley, a lawyer for the Lipskys, said the only chilling effect came from Range’s actions. “That’s exactly what the first amendment is for – it’s to allow people to express those ideas,” he said. “This is probably the poster child for what SLAPP is.”

Disclosure: Haynes and Boone is a corporate sponsor of The Texas Tribune. A complete list of Texas Tribune donors and sponsors can be viewed here.