When fracking and free speech collide

What started as a short YouTube video and a couple of local news interviews about a Texas landowner being able to light his water on fire has ballooned into a free speech fight that’s being closely watched by anti-fracking activists across the country.

Steve Lipsky has complained for years that fracking company Range Resources polluted his drinking water and streams that run through his property. The company sued him in 2011 for defaming its reputation for environmental stewardship.

Now Lipsky will have a chance to argue his case in front of the Texas Supreme Court, The Texas Tribune reported this week. The court will decide whether his right to free speech renders Range’s defamation case moot. If the court rules in his favor, the company’s lawsuit will be thrown out. If that doesn’t happen, he may be on the hook for $3 million.

The case won’t be heard until December, but environmentalists are already drawing parallels between it and other incidents across the U.S. in which hydraulic fracturing companies and anti-fracking activists have butted heads. Lipsky’s supporters say his case adds to a growing list of instances that show governments and courts are too quick to kowtow to industry demands. But if he wins, they say, it could embolden the anti-fracking movement across the country by letting activists know they’re free to badmouth fracking companies without fear of retribution.

“Range has a right to protect its reputation, but the speech they’re complaining about is protected speech,” Lipsky’s lawyer Joe Sibley said. “If we’re going to allow companies to sue people for defamation every time they don’t like what’s being said, then that basically allows corporations to silence public participation.”

Lipsky’s saga began in 2010, when he found that he could ignite the wells and streams on his property in Parker County by holding a lighter up to them. He uploaded videos of his discovery to YouTube, was interviewed by local reporters and was featured in the documentary “Gasland Part II.” He blamed drilling by Range Resources in the nearby Barnett Shale for his misfortune. The Environmental Protection Agency agreed and ordered Range to pay for fresh drinking water for Lipsky and one of his neighbors. But then the EPA dropped its investigation without giving reason, and the Texas Railroad Commission — which oversees fracking in the state — said there was insufficient evidence linking Range to the contamination.

Given the apparent lack of evidence, Range has accused Lipsky of defaming the company. The Texas Supreme Court will have to look into whether a 2011 tort reform law would allow the court to dismiss Range’s case before it is heard in a lower court. But regardless of what the court decides, his lawyer says the damage has already been done.

“Defending yourself against a big company is a daunting task for most people,” said Sibley. “[Range] is showing it’s willing to try to ruin someone with litigation.”

Range did not respond to requests for comment for this story.

Sibley and others say Lipsky’s case is just one example of fracking companies attempting to silence their opposition.

In 2013 documents emerged showing that Range Resources settled a court case with a family near Pittsburgh who said their land was contaminated by a Range well. The settlement included $750,000 for the family and a provision that the family not disparage the company and not speak negatively about the entire gas formation in Pennsylvania called the Marcellus Shale. While the settlement drew a lot of media attention, experts say it wasn’t unique — but could still violate the First Amendment.

“The court is giving the OK to take an entire topic out of public debate,” said Lee Rowland, a free speech attorney at the American Civil Liberties Union. “The implications of a gag order that broad are far ranging and absurd. Courts shouldn’t be honoring those kinds of gag orders.”

But gag orders are only the most common way the industry and its supporters have tried to quash opposition, according to activists.

Last year the town board of Sanford, New York, barred discussion of fracking at its public meetings. The decision was unanimous and came after the board announced its desire to attract oil and gas companies to the region. The National Resource Defense Council (NRDC) sued, and the town withdrew its order.

And in perhaps the most infamous case, Vera Scroggins, an anti-fracking activist who gave tours of fracking sites in Pennsylvania, was sued by Cabot Oil & Gas in 2013 for trespassing and barred from setting foot on land it owned or leased. Unfortunately for her, that land included the houses of several of her friends, a hospital, malls and grocery stores — 40 percent of the county.

Scroggins has since gotten a judge to loosen the restriction, but she says the injunction was proof that companies will work to silence those they disagree with.

“It’s almost like you’re on a blacklist,” she said. “We get punished because we don’t support the party line.”

While examples like Scroggins’ and Lipsky’s are outliers, experts say, as fracking continues to expand in states like Pennsylvania and Texas, there will likely be more cases of people alleging that gas companies violated their constitutional freedoms.

“Gas companies aren’t making a consumer product in the same way Walmart does, so they don’t have to worry about a brand in the same way Walmart does,” said Kate Sinding, a senior attorney at the NRDC. “That makes them a little more free to engage in tactics that other companies wouldn’t dare to.”