Cabot Oil & Gas, a petroleum, natural gas and natural gas liquids exploration and production company based in Houston, Texas, has filed a $5 million lawsuit against water pollution victim Ray Kemble and his lawyers for speaking out about his polluted water well.
Kemble, who lives in Dimock, Pennsylvania, a tiny town in the rural northeast corner of the state whose aquifer was famously polluted by gas extraction, hasn't had clean water since Cabot started hydraulically fracturing, or fracking, near his home eight years ago. The town’s fracking-related pollution was featured in the HBO films Gasland and Gasland II.
In addition to the stress of living with a contaminated water well, Kemble is now being sued by the same company that polluted his water in the first place. Cabot is arguing that he has defamed its business by speaking publicly about the pollution in his well. At the first hearing in the case in early December, Judge Jason Legg called Cabot's $5 million damage claim improper, noting that such a large number is used only to gain attention and possibly biased media coverage.
"Cabot is substantially offering this basically as a marketing exercise because they want to have their version of the story out in the media." said one of Kemble's attorneys, Rich Raider. "Specifically, when they offered the pleadings to the Washington Post before they served them, which may not weigh in court, but tells you what their motive is."
At that early December hearing, Cabot's lawyers argued that once a pollution victim has signed a settlement agreement, Cabot then has the right to re-pollute that victim because the victim has waived all future litigation rights. Cabot's lawyers also argued that the silence agreement contained in the settlement Kemble signed with the company waived his rights to Anti-Slapp law protections and first amendment freedom of speech.
Kemble did sign a settlement agreement when Cabot originally polluted his water well. Just after the agreement was signed, Cabot was allowed to frack three gas wells near Kemble’s home. New cases of water pollution were reported in the area and Ray’s water turned a darker black. “You've got new contamination that wasn't there before. That was not from drilling, just fracking. So does fracking cause groundwater contamination? You figure that one out," said Kemble at a press conference.
Lingering water pollution has made it impossible for Kemble to sell his home. Stuck in a home with no water source, he is forced to drive his flatbed truck into town to fill a 500-gallon water container, called a water buffalo, then fill two permanent water tanks in sheds just outside his kitchen. Those tanks have to be filled three times a month. Along with the cost of the water, and the nuisance of having to get it himself, in the winter he has to heat the sheds to keep his water supply from freezing.
In 2009, Pennsylvania’s Department of Environmental Protection filed its first Consent Order against Cabot Oil & Gas, stating “Cabot had caused or allowed the unpermitted discharge of natural gas, a polluting substance, into the groundwater.” Further DEP testing found Cabot had polluted at least eighteen drinking water supplies in Dimock. DEP also banned Cabot from fracking within a nine-mile radius of the contamination area. That ban remains in effect today.
Water testing results coupled with multiple well casing violations led Cabot to sign a final Consent Order in December of 2010. In it, Cabot admits their shoddy well construction polluted the Dimock aquifer. According to the documents, Cabot, “knowingly waives the right to challenge the content or validity of DEP’s findings.”
Almost immediately after signing the Consent order, Cabot started denying that it had polluted the aquifer. The company took out full-page ads in several local newspapers in September 2010 stating: “Cabot does not believe it caused these conditions and intends to fight these allegations through its scientific findings.” The day before the ad ran, Dan O. Dinges, president and CEO of Cabot sent a letter to DEP claiming the entire pollution case was a scam. The excuse Cabot used is typical for the gas industry: “Cabot has presented the Department with overwhelming and conclusive proof that methane gas existed in groundwater and water wells in the area around Dimock and Springville townships long before Cabot began drilling in the area.”
Cabot was well aware, however, that the evidence was not on its side. Before drilling started, Cabot paid for pre-drill testing that found no presence of hydrocarbons (methane) in the area’s water wells. But when residents tried to use the testing as evidence that natural gas had not been present in their water wells before drilling, Cabot said the testing was invalid.
Kemble’s pre-drill testing was conducted by a different company than those deemed invalid by Cabot. It also showed no hydrocarbons in Kemble’s water well. DEP testing, well construction violations and the testimony of homeowners pointed conclusively at Cabot’s gas extraction activities as the cause of Dimock’s pollution. Cabot knew of the results of the pre-drill testing, but still claimed Dimock’s water was polluted with methane long before it had arrived.
Cabot settled the Dimock pollution case with the state of Pennsylvania for just over $4 million in late December 2010. In 2012, a federal lawsuit brought by dozens of Dimock families was also settled by the company.
Before the ink was dry on the 2012 settlement, Cabot was asking DEP for permission to frack Dimock gas wells drilled years before, despite the regulator’s ban on such activity within a nine-mile radius of the pollution area. In August 2012, Cabot asked permission to resume fracking and DEP granted permission. Cabot fracked three older wells, and before the end of the year, at least three new cases of water contamination had surfaced.
Ray Kemble’s water well was re-polluted during this second round of fracking. Although he’d received some settlement money from the original DEP settlement and the federal lawsuit, it was far less than the value of his home. Now he was stuck in a house he could not sell. Environmental damage coupled with having one of the faulty gas wells just 500 feet from his front door made staying in his home untenable. His health was also beginning to fail. Kemble has since been diagnosed with cancer.
Cabot disallowed Kemble from speaking about any of these issues, as it does with all victims of its pollution the company settles with. In order to receive restitution, victims of pollution are often, if not always, required to sign a Non-Disclosure Agreement, also known as a silence agreement or gag order. Once the victim signs, they are forbidden to speak of their pollution case or to allow any testing done on their polluted water to be made public.
Kemble is not a man who abides keeping his mouth shut. He had his lawyers rewrite the gag order to allow him more latitude to speak out. His testimony before the EPA helped ensure the three largest known cases of fracking-related water pollution in the nation—Dimock, Pavillion, Wyoming and Parker County, Texas—were included in the EPA’s final report on water and fracking.
“It’s about the people, it’s not just me. This is just a way to shut the people up, of the county and of the state, and I just don' t think it's right,” said Kemble.
Cabot argued at the recent hearing that he was bound by his gag order and since (in the company's opinion) it did not contribute to the pollution of the Dimock aquifer, his speech has been defamatory.
Kemble's lawyers argued that legal precedents disallow all forms of non-disclosure agreements where environmental pollution is involved. Not only do these gag orders preclude pollution victims from petitioning their government, they also remove the citizen’s right to Freedom of Speech. Kemble’s lawyers point to an immunity for political and legal petitioning activities. That immunity applies if the communication is aimed at procuring favorable government action, regardless of whether the communication is made directly to the government or to third parties.
There’s no way to know how fracking-related pollution victims have signed these gag orders, so there’s no way for the nation to know how many cases of fracking-related pollution have actually occurred. Also, a scientific study can’t be made public once the property owner is bound by a gag order, so further study of the effects of fracking on groundwater is also silenced. For now Kemble remains a powerful and dedicated voice exposing the gas industry’s campaign to silence its pollution victims.
Watch a video about Kemble's case: