Justices Prolong North Texas Fracking Battle

A Fort Worth-based oil and gas company may continue seeking defamation damages from a Parker County man who claimed its drilling fouled his well, but may not go after his wife.

The Texas Supreme Court on Friday allowed Range Resources to continue its defamation and disparagement suit against Steve Lipsky, whose accusation that the company polluted his family's drinking water sparked a bitter dispute between the Texas Railroad Commission and the U.S. Environmental Protection Agency.

Range,however, may not pursue conspiracy claims against Lipsky's wife, Shyla Lipsky, or Alisa Rich, a toxicologist the couple hired to test their well, the high court said, upholding a 2013 appeals court ruling.

The case concerned a tort reform law intended to protect free speech that opens the door for the early dismissal of meritless legal claims filed to intimidate critics — so-called strategic lawsuits against public participation.

So much methane migrated into the well on Lipsky’s 13-acre estate that he could ignite the stream flowing from it with the flick of a lighter. He blamed the phenomenon on hydraulic fracturing – or some element of Range's nearby Barnett Shale operations. In the past three years, he has shared those suspicions in YouTube videos, the film Gasland Part II and in news reports.

Range Resources maintained it held no responsibility. In 2011 it filed a $3 million lawsuit against the Lipskys and Rich alleging the three conspired to “defame and disparage” Range and force federal regulators to intervene.

The company took 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.”

Attorneys for the Lipskys and Rich asked courts to dismiss the defamation suit, pointing to the 2011 law that sought to prevent tactical lawsuits filed to quiet critics by drowning them in legal fees.

After a lower court allowed Range’s lawsuit to proceed, the 2nd 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, but said the company could continue its suit against Steve Lipsky because his statements were not presented as opinion and were "susceptible of being proved true or false."

On Friday, the state’s highest court upheld that ruling by denying petitions from Lipsky and Range.

The decision likely means that Lipsky, a Wisconsin transplant who works as a mortgage bundler, will add new chapters to his long-running saga with Range.

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 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. 

In a peer-reviewed study published last September, researchers from five universities concluded that oil and gas activities —but not hydraulic fracturing — tainted drinking water wells atop North Texas’ Barnett Shale and Pennsylvania’s Marcellus formation.

The study, which blamed poorly constructed wells for the methane contamination, included wells in Lipsky’s neighborhood.