A judge has concluded that a Parker County resident, owner of a methane-contaminated water well, created a "deceptive video" that was "calculated to alarm the public into believing the water was burning."
State District Judge Trey Loftin said well owner Steve Lipsky collaborated with Alisa Rich, an environmental consultant.
Loftin made his remarks in an order, signed Thursday, denying a motion by Lipsky and Rich to dismiss Range Resources' multimillion-dollar counterclaim against them.
Fort Worth-based Range filed the counterclaim in July after Lipsky and his wife, Shyla Lipsky, sued it for $6.5 million in Loftin's 43rd State District Court in Weatherford. The couple contends that two Range natural gas wells contaminated their water well with methane, a primary component of natural gas.
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"I respect Judge Loftin, but do not agree with his ruling," Rich, owner of the Wolf Eagle Environmental consulting firm in Flower Mound, wrote in an e-mail Friday. "... We are entitled to an appeal ... and intend to exercise our right."
Rich has been heavily criticized by the oil and gas industry, which has questioned her professional credentials, objectivity and testing methods. Range said she "serves as a hired gun for plaintiffs' lawyers who attack the oil and gas industry." She has defended her work in various depositions.
Lipsky declined to comment on Loftin's order and remarks, referring a reporter to his attorneys, Allen Stewart and David Ritter, who did not respond to requests for comment.
In sworn depositions, Lipsky and Rich have generally denied improper actions or intent to deceive with the video, which has been shown in TV reports and can be viewed on YouTube.
The original order
On Dec. 7, 2010, the Environmental Protection Agency issued an emergency order against Range, contending that two of its Barnett Shale gas wells "caused or contributed" to contamination of water wells belonging to Lipsky and a neighbor.
But John Blevins, the EPA official who signed the order, later backtracked somewhat, saying the Range wells "may" have caused or contributed to the contamination.
In his order, Loftin expressed concern that Lipsky, "under the advice or direction" of Rich, attached a hose to the water well's gas vent -- not to a water line -- and then lit the gas from the hose's nozzle.
"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 judge wrote. Loftin also cited evidence that Rich had sought to mislead the EPA.
Loftin said e-mails between Lipsky and Rich about the video could reasonably lead people to believe that a "conspiracy to defame Range" exists.
Range called the video a "gross distortion."
"The hose pictured ... is not a water hose at all, but is used solely for the purpose of venting gas" from the Lipskys' water well, the company said in its counterclaim. Range is seeking $4.2 million in actual damages, plus unspecified punitive damages, for legal costs and damage to its reputation.
Range maintains that its gas wells did not cause the contamination and is battling the EPA in federal courts to have the order against the company dismissed. Range has said that water wells are often vented to prevent gas from building up, a practice employed long before Range began drilling around Parker County.
Loftin's order is the second major legal setback to the Lipskys in three weeks.
On Jan. 27, the judge threw out the Lipskys' $6.5 million lawsuit against Range, ruling that the couple lacked legal jurisdiction to sue because the Texas Railroad Commission had determined in March that Range's gas wells were not responsible for contaminating their well.
Loftin said that any challenge of the commission's ruling should have been filed in state district court in Austin and that the deadline for doing so has passed.
Lipsky previously said he didn't participate in a commission staff hearing about well contamination in January 2011 because his expert consultants didn't have enough time to prepare.
The Lipskys maintain that methane got into their well because of improper casing and cementing of the Range gas wells. They said Range's "failure to cement the surface casing of the Butler and Teal wells to a depth of at least 1,000 feet" caused gas from geological formations above the Barnett Shale to seep into their water supply.
In its March ruling, the Railroad Commission agreed with its staff and Range that gas in the water wells likely migrated from the shallow Strawn formation, which is only hundreds of feet deep. It is more than a mile above the Barnett Shale, the source of the Range wells' gas.
Range says gas from shallow formations had appeared in south Parker County water wells for many years before Range began drilling in the area. But Lipsky said his water well had generally functioned capably for several years and began having serious problems only after the two nearby Range gas wells were drilled.
While the video posted on YouTube was labeled "Hydraulic Fracturing turns gardenhose to flamethrower," neither the EPA nor the Lipskys have cited that drilling method as a cause of the water well contamination.
Jack Z. Smith, 817-390-7724