A Texas family claiming they were severely sickened by air pollution from two companies’ hydraulic fracturing operations near their home had their lawsuit against the companies thrown out last week, in the second high-profile decision to come down this year alleging sickness from fracking operations in the state.
In a ruling reported by Inside Climate News, District Judge Stella Saxon agreed with Marathon Oil Corp. and Plains Exploration & Production that Mike and Myra Cerny did not have enough scientific or medical proof that emissions of benzene, methane, and 14 other chemicals alleged to be contaminating their air were causing their myriad health problems, which included frequent nosebleeds, bone pain, and rashes. The Cernys’ home sits atop the Eagle Ford Shale in Karnes County, Texas.
The ruling comes just a few months after a different family won $2.95 million in a separate Texas court on a lawsuit with similar claims. In that case, a jury decided that fracking operations near Bob and Lisa Parr’s home, located atop the Barnett Shale in Allison, Texas, were responsible for symptoms such as chronic nose bleeding, irregular heartbeat, muscle spasms, and open sores. The differences in the rulings illustrate just how difficult and seemingly arbitrary it is to win lawsuits against fracking companies in Texas based on health-based claims, according to Thomas McGarity, a University of Texas law school professor who specializes in environmental law. McGarity told Inside Climate News that the Cerny family was held to a higher standard of proof than the Parr family was.
“How can you have cases with similar facts and such different outcomes?” McGarity told the website. “There is a certain amount of judgment and that implies there is a certain amount of subjectivity.”
In cases where the integrity of oil and gas operations are called into question, subjectivity is arguably more prevalent in Texas, where judges are elected in a partisan system and the population is largely conservative. Outside interests play a large part in Texas’ judicial elections, too — out of all the 50 states, Texas consistently ranks in the top five for greatest campaign judicial candidate spending, candidate fundraising, and special interest campaign contributions, according to a Brennan Center for Justice report.
“When a judge is involved in defending rights, it often requires taking an unpopular position,” McGarity told ThinkProgress in July. “But with elected judges, an unpopular position on the law can be used against you in campaigns, and you’re out. So judges find ways around [taking those positions].”
Even without partisan elections, however, it is extremely difficult for plaintiffs to prove that they’ve been physically harmed by oil and gas operations. That’s because historically, there hasn’t been enough in the way of scientific or medical studies that definitively link natural gas operations — especially modern fracking, which has only been around for a few decades — to health problems. Even as more of those studies come out, it’s difficult to prove in court that exposure occurred. Also in cases like the Cerny family’s, whose property is surrounded by many wells, it’s difficult to tell which operation is responsible.
Because the burden of proof is so high, cases usually get settled or dismissed before they get to a jury. Indeed, the Parr family’s case was widely seen as the first time a jury has ever ruled in favor of a plaintiff claiming their health had been harmed by fracking. The gas industry as a whole maintains that fracking is safe, and that health issues can’t be linked to it.
The Cerny family’s lawsuit alleges their health was fine when they bought their home in Karnes County, Texas, in 2004. That started to change in 2012, when their home was “completely surrounded” by gas well owned by both Marathon and Plains. During that time, the lawsuit alleges sinkholes began forming on the Cerny’s property, which they attempted to fill with dirt. They began to experience daily headaches, liver pain, and bronchitis. The family pet was put down after experiencing rashes and a large tumor.
But Marathon and Plains Exploration noted that the family made its accusations “without providing a single expert on oil and gas operations who has opined that [Marathon] has done anything wrong or a single medical expert who has opined that those operations have caused them any injury.”
Because of the wide differences in how cases are ruled in Texas, McGarity recommended to Inside Climate News that health-based claims against fracking companies should be able to be solved by tighter regulations on emissions, to stop exposure to airborne toxins before sickness happens, before families need to take their claims to court. “We need a strong, unbiased regulatory system to protect the public from these emissions before they happen,” he said.