WV Supreme Court Hears Marcellus Drilling Nuisance Case(s)

WV Justices hear appeal arguments in Marcellus shale case

From Staff Report, Parkersburg News & Sentinel, January 16, 2019

PARKERSBURG — The West Virginia Supreme Court Tuesday heard arguments in an appeal of a lower court decision by residents who claimed Marcellus shale drilling has denied them the enjoyment of their property.

Deborah G. Andrews, Rodney and Katherine Ashcraft, Gregg D. McWilliams, Mary Mikowski and Robert and Loretta Siders filed a complaint in October 2013 alleging nuisances such as noise and odors against Antero Resources Corp. and Hall Drilling.

The claim was transferred from Ohio County Circuit Court to the West Virginia Mass Litigation Panel in November 2014, which eventually ruled in favor of the defendants in October 2016.

At issue is horizontal well drilling and hydro-fracturing in the Marcellus Shale, which has caused the industrialization of rural West Virginia and noise, truck traffic, odors, dust contamination, light pollution and vibrations, among other things, the petitioners brief to the Supreme Court said.

Antero and Hall said the Mass Litigation Panel did not abuse its discretion by holding that petitioners failed to show they are entitled to relief and that the panel applied the correct legal standards concerning mineral owners’ and surface owners’ rights under West Virginia law.

“From what began as a toxic contamination case, petitioners now only claim annoyance, discomfort and inconvenience caused by noise, traffic on public roads, odors, dust, lights, and vibrations (collectively, ‘conditions’) allegedly resulting from horizontal drilling activities located in the vicinity of petitioners’ surface estates,” the Antero brief said.

Two friends of the court briefs were filed in support of Antero and Hall from the West Virginia Oil and Natural Gas Association and from the Independent Oil and Gas Association of West Virginia, and the West Virginia Chamber of Commerce, the West Virginia Business and Industry Council, the West Virginia Coal Association, the Contractors Association of West Virginia, West Virginia Chapter of Associated Builders and Contractors, the West Virginia Manufacturers Association and the West Virginia Poultry Association.

“The issues petitioners seek to appeal would significantly impact the well-settled theories of property law and the sustainability of the Marcellus shale industry in West Virginia,” the chamber brief said. “Because such issues necessarily implicate West Virginia’s economic viability overall, including direct and indirect impacts on other industries … all have significant interests in the issues raised by the petitioners in this appeal.”

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Supreme Court to rule on natural gas drilling nuisance question

From an Article by Jeff Jenkins, WV Metro News, January 16, 2019

CHARLESTON, W.Va. — The state Supreme Court will make a much-anticipated decision in the coming months on the issue of natural gas drilling and whether the process is a public nuisance.

The Court heard an hour of oral arguments Tuesday on an appeal by a group of Harrison County property owners that claim horizontal drilling by Antero Resources is a nuisance. The plaintiffs lost in the lower court. The state’s Mass Litigation Panel found summary judgment in favor of Antero.

Plaintiff’s attorney Anthony Majestro argued Tuesday normal life has been disrupted. “These trucks are going by 100-a-day, 24-hours-a day. They are parked in front of my clients’ houses. Their engines are running, the big 18 wheelers, the hisses and noises, fumes coming off. That’s one of the primary causes of the nuisance,” Majestro said.

Monongalia County Circuit Judge Russell Clawges, appointed as a temporary justice for the case, asked Antero attorney W. Henry Lawrence if the panel’s ruling basically gives the drilling company a green light no matter what.

“Does not the panel’s order basically give your clients carte blanche to do whatever they want to, whenever they want to, however they want to, no matter what affect it may have on these plaintiffs?

“No,” Lawrence said. “The panel looked at the evidence presented to them and said the plaintiffs have not offered expert testimony that indicates that these activities are unreasonable or unnecessary in development of these minerals.”

Majestro said because it’s horizontal drilling, there’s no guarantee property owners are being properly compensated for what they have to endure. “Most of this drilling that’s being done and this nuisance that’s being created is being conducted to get gas that is not under my client’s property,” Majestro said.

The plaintiffs want their nuisance claims to go before a jury.

Lawrence said the panel looked through hundreds of pages of discovery in the case before making its decision. He said there were initial claims of contamination, physical damage and personal injury. He said the plaintiffs eventually withdraw their negligence claim. There were originally 22 plaintiffs and now there are seven. “None of these plaintiffs had well pads on their properties. There were several plaintiffs in the initial case (that did),” Lawrence said.

Majestro said the case should go before a jury and let it decide if drilling activities can cause a nuisance. He said there’s no doubt his clients have been negatively impacted. “There’s testimony the clients can’t sleep. There’s testimony they can’t sit on their front porch and talk. In addition, we have odors, fumes from these trucks that are burning diesel while they are parked around my client’s house and driving by,” Majestro said.

Lawrence said the wells in question are about 10 years old and represent some of Antero’s first wells in Harrison County. The lawsuits were originally filed in late 2013.

Two members of the Supreme Court, Justice Tim Armstead and Justice John Hutchison disqualified themselves from hearing the case. They were replaced by Clawges and Cabell County Circuit Judge Greg Howard.

Tagged as: air pollution, drilling, fracking, land disturbances, marcellus shale, natural gas, noise, nuisance, odors, road damages