Range Resources Corp.’s lawsuit against Texas landowners who accused it of fouling their water by hydraulic fracturing should go back to the trial court, a state appeals court said after the judge who originally let the case proceed stepped down from the bench.
An appeals court in Fort Worth said that a new judge had replaced Judge Trey Loftin of Weatherford, Texas.
“The court must abate the proceeding to allow the successor to reconsider the original party’s decision,” the Texas Second District Court of Appeals said in a letter yesterday.
Judge Craig Towson took the bench in January after beating Loftin in a May primary and winning the general election in November. The appeals court said that it would not send the case to Towson if the judge and both sides agree by April 11 to let the appeal go forward.
The appeals panel had been considering whether Loftin ruled properly last year when he found that a state law that bans litigation meant to stifle public protest didn’t bar Range’s lawsuit.
Landowners Steven and Shyla Lipsky sued Fort Worth-based Range in June 2011 in state court after the U.S. Environmental Protection Agency issued an administrative order saying the gas driller was responsible for contaminating their water with dangerous levels of methane and benzene, which can cause cancer.
Range countersued, alleging in court papers that the couple and a consultant, Alisa Rich, conspired to persuade the EPA to intervene. The company is seeking $3 million in damages.
Rich and the Lipskys asked Loftin to throw out the countersuit on the ground that it violated a Texas law prohibiting so-called Strategic Lawsuits Against Public Participation, or SLAPPs. Loftin rejected that argument in February 2012 and the case was appealed.
The appeals court ruled in August that it lacked jurisdiction to overturn Loftin’s ruling. The appeals panel instead said it was would hear a petition for mandamus, an order blocking the lower court from enforcing Loftin’s ruling. That matter has been pending before the court.
Brent Rosenthal, a lawyer for the Lipskys, said in an interview he hadn’t decided whether to agree to waive reconsideration by the trial court.
“There are all sorts of angles in this,” he said. “Each side has veto power on that decision.”
Matt Pitzarella, a spokesman for Range, said in an e-mail that the company is still considering the court’s question.
“But we’re confident that regardless of who considers the issue, the ruling by Judge Loftin is correct and Range’s claims, based on the false allegations against it, should proceed to a trial,” he wrote.
Pitzarella said that state regulators determined Range neither caused nor contributed to the methane in the Lipsky couple’s well and the EPA withdrew its order and lawsuit against the company.
When it withdrew its order in March 2012, EPA released a letter from Range in which the company promised to sample 20 private water wells in the area and turn over the results to the federal government. The company said it had already committed to doing the tests before the EPA dropped its action.
Range alleged in court papers that the Lipsky couple and Rich engaged in a conspiracy to defame the company and used false and misleading evidence as “a pretext for getting the EPA and the media to wrongly label and prosecute Range as a polluter of the environment.”
The Lipskys shot video of methane-fueled flames shooting from a hose hooked up to their well in Parker County, Texas, and sent it to a blogger who posted it on Google Inc.’s YouTube video-sharing site. Range also alleged that they hired Rich to test their well water and alert the EPA.
Pitzarella said naturally occurring methane is well-documented in the aquifer in question, “which is why the local municipal water authority has ‘flammable’ signs at their facilities.” He said the Lipskys’ next-door neighbor had a six-foot flame shooting from his water well when it was drilled several years before Range drilled its wells.
The EPA case is U.S. v. Range Production Co., 11-cv-00116, U.S. District Court, Northern District of Texas (Dallas). The case in Texas state court is Lipsky v. Durant, 11-cv-0798, 43rd District Court of Texas, Parker County. The appeal is In re Steven and Shyla Lipsky and Alisa Rich, 02-12-00348-cv, Court of Appeals, Second District of Texas.