Oil and gas industry must stop silencing victims

What is the fracking industry trying to sell us in Marcellus? Certainly not logical consistency.

In one notorious case, now described at length by Jonathan H. Marks in The Hastings Center Report, we get a stark look at the contradictory approach of one major fracking operator, Range Resources Corp. Like the industry as a whole, Range Resources wants us to believe that its processes for extracting natural gas from the Marcellus Shale formation in Pennsylvania pose no threat to human health. At the same time, the company has gone to great legal lengths—and expense—to keep one deeply affected family from talking about the impacts of fracking on their lives.

On some levels, the case is complicated, but reduced to its essence, the company’s posture is this:

1) Don’t worry, fracking is safe.

2) Oops! You’re suing us, claiming it’s ruining your family’s health. OK, we’ll settle out of court and pay you for your loss.

3) But only if you agree never, ever to talk about the settlement publicly. Oh, and don’t mention our company, fracking or activity in the Marcellus Shale. Mum’s the word.

That’s pretty much what happened to Stephanie and Christopher Hallowich. In 2005, they bought land in Hickory, a quiet farm community in southwestern Pennsylvania’s Mount Pleasant Township. In 2007, they built a home there, expecting a happy life for themselves and their two children. That same year, Range Resources, which had leased the mineral rights to the land from the previous owner, built a well less than 1,000 feet away from the house. In view of their children’s play set, a web of gas processing facilities arose. Before long, the Hallowich parents began to experience headaches, sore throats, and burning eyes. Their complaints to industry and regulators got them nowhere. So they filed a lawsuit, Hallowich v. Range Resources Corp.

Ultimately, the company decided to settle, paying the Hallowiches $750,000 and allowing them to continue receiving royalties from the mineral rights on the land. Far more significant than the money, the settlement also contained a dry-sounding, but ominous legal construct: a “mutual non-disparagement clause.”

Because the settlement affected minor children, a judge had to approve it. The judge also agreed to seal the records. In effect, this constituted a judicially approved silencing of the Hallowiches. In 2011, the Pittsburgh Post-Gazette and the Observer-Reporter sought to get the records unsealed. Range Resources fought that effort, but the Hallowich family did not oppose disclosure. Finally, last year, Judge Debbie O’Dell-Seneca ordered the court record to be unsealed, and the story flashed around the world. I wrote about it last August.

Now, Jonathan Marks has provided a thorough and useful study of the issue, in a report called “Silencing Marcellus: When the Law Fractures Public Health.” He makes a strong argument against the silence that Range Resources sought—and temporarily won—in this case.

“Given the vocal nature of the Hallowiches’ complaints about hydraulic fracturing, one can understand why the gas operators might pay handsomely to silence them,” Marks wrote. “And given the noise, vibrations, odors, and bright light from flaring gas—even absent any adverse health effects—one can understand why the Hallowiches would have accepted a ‘take it or leave it’ settlement. But stifling the future disclosure or discussion of potential adverse health effects—such as the development of cancer years down the line—clearly has the potential to undermine public health.”

I have repeatedly written that sound science should shape the decision on whether fracking should go forward in the State of New York. So it should be clear that imposed silence should not be allowed to trump sound science.

“To understand and prevent these health risks, physicians and public health professionals need more information,” Earthjustice wrote in an amicus curiae - or friend-of-the-court - brief in Hallowich. “Unfortunately, at the very moment that more people are being exposed to gas operations that can potentially cause health problems, and at the very moment that the medical community insists that it needs more information, the gas industry routinely impedes the collection and dissemination of information relevant to the industry’s impact on public health.”

Indeed, the Hallowich's is far from an isolated incident.  To the contrary, so-called nondisclosure agreements - "gag orders" to the rest of us - are standard operating procedure in oil and gas industry settlements with affected families.

If the industry really wants to try to make the case that the fracking process is green, it will have to abandon its tactic of trying to make public discourse fade to black. Otherwise, in the public interest, our lawmakers should make sure that they don't.