The Parr family wanted payback. For three years, they were sick — chronic rashes, bloody noses, and muscle spasms. Lisa’s lymph nodes stuck out of her neck like ping pong balls. Emma, then seven, was sent to the hospital for her symptoms.
The culprit, they deciphered, was air pollution from more than 100 natural gas wells located within two miles of their home. They sued the eight oil companies that owned the wells, including Aruba Petroleum, which eventually became the focus of the case. And in April, a Texas jury decided that Aruba’s fracking operations were responsible for the pollution and that the Parr family should be compensated to the tune of $2.95 million.
The law [in Texas] is the law of men, and not of principles.
The decision made history. It was literally unprecedented, the first time a jury ruled in favor of a plaintiff claiming their health had been harmed by fracking. It was hailed not only as a win for the family themselves, but for any plaintiff seeking to hold drilling companies responsible for adverse effects on their health, property, or livelihood.
But when the jury verdict came down, there was one big thing that seemed to be overlooked in the optimism: appeal. According to the Parr’s attorneys, Aruba has already begun the process of appealing the decision. And if it gets to the Texas Supreme Court, it’s doubtful the Parrs will ever see that $3 million.
“I wouldn’t put it past the Supreme Court to overturn it on some ground, reasonable basis or not,” said Thomas McGarity, a University of Texas law school professor who specializes in environmental law. “The law [in Texas] is the law of men, and not of principles.”
Before The Courts
It was May 2008 when Bob Parr married Lisa on the porch of his country home in Allison, Texas.
Like many other towns, Allison is located atop the Barnett Shale — a rich source of natural gas located in the Fort Worth Basin. At the time Bob originally bought the house in 2000, there were three active Barnett Shale gas wells within a two-mile radius of his home.
But shortly after his marriage to Lisa, drilling activity began to accelerate in their neighborhood, by Aruba and other companies. Altogether, approximately 100 wells were drilled. But it was Aruba’s operations that the Parrs say were closest: 20 wells eventually drilled within a mile-and-a-half of the house.
At the time those wells were drilled, the Parrs allege their home slowly became a place of sickness, with symptoms including rashes, nosebleeds, vomiting, dizziness. When it began, Lisa thought she may have caught the flu. But then it got worse, and as time passed, worse still.
“By 2009, I was having a multitude of problems,” Lisa told CNN. “My central nervous system was messed up. I couldn’t hear, and my vision was messed up. My entire body would shake inside. I was vomiting white foam in the mornings.”
As the symptoms got worse and spread to Bob and Emma, they were sent to a succession of doctors. The verdict was that it was something in the environment, as neurotoxins in Lisa’s blood matched chemicals used in natural gas production. So they were directed to keep a journal with dates of symptoms to potentially tie them to specific events. They talked to their neighbors, one of whom kept a log of the dates of spills and leaks at nearby fracking sites.
“When they showed me those dates, I flipped back, and those were the dates I was either in the emergency room or at a doctor’s office,” Lisa said.
A Temporary Victory
After that, the Parrs sued — and won. After a trial lasting more than two weeks, a six-person jury of their Texan peers returned a five-to-one verdict in the Parr’s favor. The verdict confirmed that Aruba “intentionally created a private nuisance” through its fracking and production activities at the gas wells near the Parrs’ home over a three-year period between 2008–2011.
The family was happy, their attorney Richard Capshaw told ThinkProgress, but they were well aware that they were nowhere near out of the woods. They had always known that even if they won in the trial courts, there was a chance the Texas Supreme Court would rule against them in the end.
“In Texas, that’s something you start talking to your clients about really from the time you file the case,” Capshaw said. “It’s really something your clients need to be aware of in the beginning.”
The Texas Supreme Court has a long history of siding with corporate defendants over plaintiffs. In 2013, 318 cases were heard by the Texas high court where plaintiffs claimed injury against a corporate defendant. In 83 percent of those cases, the ruling came down against the plaintiffs. The number was even higher in 2011 and 2012 — an 85 percent success rate for corporate defendants.
If that ratio sounds unprecedented, that’s because it is. According to a Center for American Progress report on plaintiff justice, no other state Supreme Court consistently rules against plaintiffs as often as Texas. Even hyper-conservative Alabama has seen more variation in its ruling — its Supreme Court had an 87 percent success rate for corporate defendants in 2011, but also had a near-50 percent success rate for plaintiffs in 2012.
The Parr’s case is still in its early stages, just being appealed from trial court into the Dallas court of appeals. But it is almost certain to go to the Supreme Court eventually, Capshaw said.
“Whoever loses in Dallas is going to ask the Supreme Court to review the case,” he continued. “And when they do, the defendant will have an advantage.”
A Fracker’s Delight
The reason that Aruba will have an advantage is simple: Texas is one of seven states that elects its Supreme Court justices in partisan elections. Texans are largely conservative and holding partisan elections for judges has led to an all-Republican state Supreme Court. And the result of an all-Republican court is that it heavily favors corporate defendants over injured plaintiffs.
Capshaw, who has been practicing law in Texas for more than 30 years, agrees that the basic inclination of his state’s all-Republican high court has been to limit plaintiffs’ ability to bring claims. But he also adds that there’s another huge obstacle holding the case back.
“The subject matter of the case is, I think, politically a problem,” he said. In other words, it’s not easy to fight fracking in Texas.
For many across the U.S., fracking represents the new American energy gold rush. It creates jobs, bolsters the economy and contributes to energy security. This is especially true in Texas, where the Barnett and Eagle Ford shales together hold more than 90 trillion cubic feet of unproved, technically recoverable gas.
With elected judges, an unpopular position on the law can be used against you in campaigns, and you’re out.
There is concern among Texans regarding the threat fracking poses to public health, the environment, and the climate, but the oil and gas industry has considerable political sway in the state. So if the Parrs win their case in the end, it will be seen by many as a blow to both the oil and gas industry and its predominantly conservative supporters — a signal of proof that fracking operations can indeed be seriously harmful to one’s health.
While the partisan nature of the case should not affect the outcome, University of Texas law school professor Thomas McGarity says it probably will.
“When a judge is involved in defending rights, it often requires taking an unpopular position,” McGarity said. “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].”
“It is not very conducive to the rule of law,” he added.
The Law of Men
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. The majority of that money comes from Republicans.
According to OpenSecrets data, the Texas Republican Party has given a combined total of more than $7 million to judicial elections in the last 16 years. Koch Industries has given nearly $8 million over the last 19 years, and Valero Energy has given more than $11 million in the last 19 years. One of the biggest donors to Texas judicial races was the late Bobby Jack Perry, a staunch Republican who before his death in 2013 gave more than $53 million to help Texas appellate judge elections in the last 19 years.
The effect of this has not just been a flux of rulings against plaintiffs claiming injury against corporations, but according to a Texas Watch Foundation report, excessive donations from interest groups to judges have corresponded with rulings that overturn legal precedent to benefit large companies for decades to come.
We do not have the rule of law; rather, we have the rule of big business and big government, which makes law to enlarge and insulate its own power.
This holds true for energy companies, too, the report notes. After receiving millions of dollars from the oil industry, for example, the justices on the Texas Supreme Court in 2007 ruled that contracted employees are not allowed to sue employers for on-the-job injuries. This ruling has been widely cited in helping Citgo avoid compensating workers hurt on the job, including Jose Herrera, a contracted Citgo employee who suffered severe burns after getting trapped in a safety harness while 550-degree petroleum poured all over his body.
“John Adams stated that our government should be one of ‘laws and not of men,’ but the justices on the Texas Supreme Court have turned that formulation on its head, employing twisted logic and eviscerating long-standing precedent to achieve political ends,” the report reads. “We do not have the rule of law; rather, we have the rule of big business and big government, which makes law to enlarge and insulate its own power.”
Now, as the Parr family waits for their case to go through the appeals process, they are still living in their original house, having recently moved back from a six-month period where they lived in Bob’s office building. While they were away, Chapshaw says their symptoms improved.
Eventually, the family was able to move back to Allison after Aruba agreed to flare off more of the excess gas, rather than letting it vent freely into the atmosphere. Another big help, Capshaw says, is that Aruba is finished physically extracting gas from the wells that are nearest to the Parr’s home. At least for the time being.
“Treatment has helped, flares have helped. They’re not having the same level of symptoms they’ve had before,” he said. “Whether Aruba’s gonna start that well up again, nobody knows.”
Capshaw disagrees, though, that a win for the Parrs would be a huge blow to the fracking industry. For one, he says, the case alleges health and environmental injuries from general gas drilling, which don’t have to apply to fracking itself, even though Aruba’s wells were fracked. Additionally, the family’s attorney says the Parr’s injuries occurred because Aruba drilled those wells negligently — if they had drilled them with more care, he alleges, the injuries never would have happened.
“Aruba thinks it’s a big deal, but the way I see it is this: is Aruba bad, or is fracking bad?” Capshaw said. “The judge found Aruba was bad, and not that fracking was. It’s an indictment of these specific wells.”
As for what the family can do to improve their likelihood of coming out victorious, he says there’s nothing to do except reinforce the evidence they’ve already presented, and hope that the court affirms their win.
“They feel that they were injured, they feel that Aruba was at fault, and they feel like the jury’s verdict should be honored,” Capshaw said. “They feel very strongly about this.”