Texas Supreme Court backs Fracker over Homeowner

dont-frack-with-our-waterThe Texas Supreme Court has long outdone even the U.S. Supreme Court for corporate-friendly rulings. In 2010, the country’s highest court ruled 5-4 that corporations are people (Citizen’s United), and that speech is synonymous with money, using the “logic” that regulating campaign spending is akin to restricting speech. Taxpayers who would like to have seen accountability and transparency in campaign contributions, if only to see whether their own congressional representatives work for them or the Koch brothers, were ruled SOL by the high court.  The ruling has since proved, of course, that corporations are not only people; they are very special people. Most of us non-special people can’t afford to buy lobbyists, legislators and new legislation, much less a private plane, a security company, or U.S. military services for investments abroad.

Texas Supreme Court protects Fracker

Texas Supreme Court rulings also feature exquisite treatment for corporations. Texas’ highest court overturns verdicts in favor of injured plaintiffs some 79% of the time. That’s a solid record for pro-corporate jurisprudence, but now Texas’ highest placed justices have topped even themselves. In a pro corporate, anti-citizen ruling that might even impress the RATS (Roberts, Alito, Thomas, Scalia) and Kennedy on the U.S. Supreme Court, the Texas Supremes ruled that not only are corporations very special people, they also deserve special protections from real people. If the Texas Supremes have their way, real people may no longer be allowed to state their opinions if those opinions hurt corporations’ tender, special feelings. Corporations are not only very special, you see; they are also, it turns out, very sensitive and must be treated as such.

Lipsky fails to state Opinions are Opinions

After destroying Steve Lipsky’s water well – which, according to Lipsky, he was forced to disconnect from his house after independent tests from two different experts found explosive methane levels higher than anything they’d ever seen – Range was victimized by Lipsky, according to Range. Range was defamed by Lipsky, said Range. Lipsky and others launched a conspiracy against Range, said Range.

Lipsky’s defamatory, conspiratorial action against Range, said Range, was that he lit his water on fire, was filmed on video doing so, and he claimed that Range’s fracking activities caused the problem. Lipsky defamed Range, said Range, because he failed to present his opinion as his opinion. When Lipsky stated that Range wrecked his water, he failed to state that it was his opinion that Range wrecked his water. That hurt Range’s feelings, and, the company said, that hurt its reputation. Range never proved that Lipsky hurt  its reputation, never showed any damages that Lipsky’s opinion wrought, which is the usual bar for bringing a defamation lawsuit. One needs to prove damages, typically, in a defamation lawsuit, one needs some cause of action, typically, but nothing is typical about the Texas Supreme Court and its rulings which, by a wide, wide margin favor corporations when they clash with individual citizens.

Let’s recap: Because Lipsky had the temerity to light his water on fire and post a video of himself doing so, all while claiming that the water was poisoned by Range’s fracking operations, he committed a defamatory act against Range. The Texas Supreme Court is shocked, shocked to find that a Texas citizen made a statement which he failed to identify as his opinion. Consequently, the Lone Star state’s highest court has ruled that a defamation lawsuit brought by Range against Lipsky can move forward.

Supreme Court: Go Get Him

The Texas Supreme Court ruled that Fort Worth-based Range Resources can continue seeking defamation damages from Lipsky, but may not go after his wife Shyla on conspiracy charges. (Apparently Range forgot to add Lipsky’s kids and dog to the petition.)  Range also sued Alisa Rich – a toxicologist the Lipskys hired to test their well – for conspiracy, but the Supreme Court did follow an appeals court ruling on that charge by not allowing Range to pursue conspiracy charges against Rich.

A Classic Anti-SLAPP Case Denied

Lipsky had appealed to the Supreme Court to dismiss Range’s suit  against him on an anti-SLAPP  play. SLAPP – Strategic Lawsuits Against Public Participation – were put in place to protect people’s right to free speech from deep-pocketed corporations trying to intimidate critics (Could SLAPP ever get more classic than this case?), but the Texas Supreme Court ruled the Range case against Lipsky didn’t apply.

This part is undisputed: So much methane migrated into the well Lipsky had dug on his 13-acre property that he could ignite it with the flick of a lighter. Lipsky blamed the phenomenon on Range’s nearby hydraulic fracturing.

Range Resources maintained that it held no responsibility. State regulators agreed, and the EPA, which had previously identified the methane and backed Lipsky, eventually withdrew its complaint and slinked away. In 2011, Range filed a $3 million lawsuit against the Lipskys and Rich; Range claimed the three conspired to “defame and disparage” Range and force federal regulators to intervene.

Range took issue with many Lipsky assertions. Range said it did not contaminate the well. Range said Lipsky could light his water on fire, but not the gas flowing within the water. (Really?) Range also disputed Lipsky’s claim that the company treated the Lipskys like “criminals.”

The Fort-Worth Star Telegram said attorneys for the Lipskys and Rich asked courts to dismiss the defamation suit. Their attorneys pointed to the 2011 anit-SLAPP law that sought to prevent tactical lawsuits filed to quiet critics by drowning them in legal fees.

A lower court ruled Range’s lawsuit could proceed. The Second 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.” (Is that not true for any statement ever made?  Welcome to Texas.)

The Texas Supreme Court Rules

Does this mean that anybody in Texas can be sued for saying anything they say if they fail to use the modifier, “in my opinion.” Does this mean the Texas Supreme Court thinks people are so stupid that unless one utters, “in my opinion” to qualify every statement, that speaker is liable to be ensnared in a defamation lawsuit?

This ruling should have been thrown out for two painfully obvious reasons:  1.  Range’s lawsuit against Lipsky is so clearly a violation of the anti-SLAPP law that it is a slap in the face for every citizen of Texas who values free speech.  2. Free speech is officially dead in Texas if everyone is herein forced to utter “in my opinion” every time they say anything.





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