So-called ‘Nuisance’ legislation filed after more than 200 state residents living in fracking fields filed nuisance suits against Antero Resources and others
By Michael M. Barrick
WEST UNION, W.Va. – Here in the heart of the Marcellus Shale fracking fields, more than 200 residents determined to protect their health, land and lifestyle, filed suit against Antero Resources and two other energy companies more than a year ago. Tired of intrusions upon their health, land and even ability to sleep at night, the citizens hope to recover compensation for damages that the gas industry has caused in this region of the state from site development and well pad activity; traffic congestion; water use and contamination; air pollution; waste disposal; public health issues; quality of life issues; and, eminent domain abuse.
More and more, it feels like the residents of this state are viewed by ‘our’ representatives in the same dismissive light as any other animals inhabiting the land; that we have no more rights than the deer or groundhogs do.” – Mary Wildfire, a resident of Roane County, W.Va.
While that litigation is currently scheduled for trial in May if the litigants do not reach an out-of-court settlement, the energy industry’s representatives in the West Virginia State Senate aren’t waiting to see what the courts have to say about the impact of the energy industry upon the state’s residents. West Virginia State Senator Ryan Ferns – along with six co-sponsors – has introduced Senate Bill 508, which would severely curtail the criteria for residents to file a nuisance suit against the energy extraction industry. The bill was sent to the Senate Judiciary committee on Feb. 4, the same day it was introduced in the senate.
As stated at the end of the bill, “The purpose of this bill is to establish the standards applicable to the common law claim for private nuisance. The bill lists elements and establishes requirements including the requirement that physical property damage or bodily injury exist before a person can seek damages for a private nuisance. The bill also prohibits private nuisance claims if the activity at issue is conducted pursuant to and in compliance with a permit, license or other approval by a state or federal agency or other entity. The bill also requires a plaintiff to have either an ownership interest or possessory interest in the property at issue to have standing to bring a private nuisance claim.”
Proponents argue that West Virginia is too litigious of a state and this bill will help create a more suitable business climate.
Residents, especially those exposed to the impacts of fracking the past several years, have a different view. They say that the bill, if passed, would severely limit their rights as landowners and provide the energy extraction industry with far too much protection from liability for the damages it causes to people and communities.
Mary Wildfire, of Roane County, argued, “It seems to me that gas companies enjoy quite enough privilege in this state. They can slap a huge well pad on the land we spent years working to earn the money to buy, and more years working to build a house and farm on. Most of us don’t own the mineral rights and have neither any say in this, nor do we derive any benefit. They can make noise and light and fumes sufficient to drive us from our homes for months; they can permanently damage the water we depend on, and we’re supposed to be satisfied with truckloads of water filling outdoor tanks; we can’t get compensation unless we can prove that our water didn’t have the contaminants before drilling, a prospect which not only costs hundreds or thousands of dollars, but is rendered virtually impossible by the fact that the companies don’t even have to tell us what to test for. If our land happens to lie on the path they’ve chosen for a pipeline, they’re entitled to take as much of it as they like for that. If there are risks due to these massive pipelines, that’s our problem.”
She asked, rhetorically, “Is the convenience and profitability of the gas companies the legislature’s only imperative here – or do we who live here matter at all?” Answering her own question, she continued, “More and more, it feels like the residents of this state are viewed by ‘our’ representatives in the same dismissive light as any other animals inhabiting the land; that we have no more rights than the deer or groundhogs do.”
Nancy Bevins, of Uphsur County, said, “It is clear some of the state legislators want to reduce the cost of extraction by transferring damage done by gas drillers and strip miners to the rural folks living in and near these sacrifice zones. I would guess most legislators can afford to live in an area unaffected by such activity. But not everyone has that option, or the desire, ability and funds to move. Can you imagine working your entire life, settling down in your home to finally retire, only to have your neighbor allow a well pad on the border of your property? Six hundred feet from your home?”
She added, “Residents of our state deserve protection from outside multimillion dollar corporations. What SB 508 does is to revise the definition of a nuisance suit almost out of existence. This bill favors corporations over middle class and poor West Virginia citizens.”
She concluded with the plea to state lawmakers: “Please vote no on SB 508!”
Tom Bond, a farmer in Lewis County, said, “Obviously, this is an intent to take away precisely what common law nuisance was intended to cover. Under the definition in SB 508, if you don’t have grounds for an ordinary lawsuit, you can’t bring a nuisance suit.” He continued, “There would be no way to redress aesthetic values, or rights established by custom or habit. It places persons taking initiatives for short-term private gain over those with long-time established interests. It also favors those who would violate legal prohibitions against actions that might injure people in the neighborhood or downstream or downwind. In other words, it advances a ‘cowboy’ attitude in those doing business other than the usual business in an area.”
John Cobb, also of Lewis County, offered, “Among the most basic and fundamental rights we enjoy are property ownership and the ability to be safe, secure and comfortable in our homes. For hundreds of families whose homes are near the Marcellus Shale and other shale drilling activities, compressor stations and the roads to these sites, they can no longer enjoy their homes or their land. Rather that protect the rights of these families, proposed SB 508 strips them of those rights.”
He continued, “You have the right to do what you want on your own property, so long as it does not interfere with the rights of your neighbors and others in the community to enjoy their property. If your activities affect others, they can hold you accountable under nuisance law for violating their private property rights. Nuisance occurs when activity on one property interferes with the enjoyment and use of your property, but no physical trespass or invasion to your property occurs. ‘Nuisances’ don’t stop at the property line. The law of nuisance recognizes that real injuries exist even when the activities do not cause injury to people or property.”
Bond, who is also a retired chemist, observed that legislation designed to benefit the extraction industry ignores economic realities. He said, “Coal is a walking corpse, producing lots of money for a very few and a few jobs, is on the way down. Its waste condemns it to ‘least desirable’ position among familiar fuels, and, in spite of what little regulation the state forces on it, converts thousands of acres of West Virginia to wasteland each year. At least three major coal companies are bankrupt.”
He added, “Unconventional gas and oil drilling are wobbling like a drunken sailor. At best it is a ‘transition fuel’ to renewable sources of energy, and money has been spent, and continues to be spent, like the sailor did while becoming drunk. People in the discovery and production end of the business enjoy bright hope, but have high cost of production, transportation and liquefaction, and ignore huge supplies near the big markets, Europe and China.
Bond concluded, “It is clear some of the state legislators want to reduce cost of extraction by transferring damage done by frackers and strippers to the rural folks living in and near these sacrifice zones. They can’t conceive of any way to improve life in West Virginia other than knuckling down to coal, oil and gas interests, and this new initiative is about the only advantage they can confer, since laws and enforcement are already so favorable to those interests. “
© Michael M. Barrick, 2016
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SB 508 sponsors and contact information
Ryan Ferns, a Republican from Ohio County, is the bill’s primary sponsor. Information about Ferns and the co-sponsors are listed below.
- Ryan Ferns, (R), Ohio County, represents Senate District 1, which includes most of the state’s northern panhandle. He is chair of the Health and Human Resources and Labor committees. Email: firstname.lastname@example.org
- Ron Stollings, (D), Boone County, represents Senate District 7, in the southwestern coal fields. He serves on the Health and Human Resources committee. Email: email@example.com
- Art Kirkendoll, (D), Logan County, represents Senate District 7 with Stollings. He is on the Energy, Industry and Mining committee. Email: firstname.lastname@example.org
- Craig Blair, (R), Berkeley County, represents Senate District 15, which includes much of the eastern panhandle. He is Vice-Chair, Energy, Industry and Mining committee. Email: email@example.com
- Mitch Carmichael, (R), Jackson County and Majority leader, represents Senate District 4, which includes counties in shale fields of central West Virginia near the Ohio River. Email: Mitch.Carmichael@wvsenate.gov
- Jeff Mullins, (R), Raleigh County, represents Senate District 9, which includes southern coalfield counties. He, too, sits on the Energy, Industry and Mining committee. Email: firstname.lastname@example.org
- Corey Palumbo, (D), Kanawha County, represents Senate District 17, which includes portions of Kanawha County, which is home to the state capital of Charleston. He is on the Health and Human Resources committee. Email: email@example.com