Amity and Prosperity_One Family and the Fracturing of America

by Eliza Griswold

  She broke it down to a matter of cause and effect. Most of the exposure cases she handled were work-related. In these cases, both sides knew a hazardous product was on-site and that the chance for exposure existed. Usually, her job was to go out and see what kind of factors limited that exposure, including the amount of time the worker was around that chemical and any protections that limited contact. She laid it out like this:

  “You go out to Stacey Haney’s house, and even if we say that fracking doesn’t cause problems, you ask are there any other factors that could harm their health: spills, leaks, releases, air exposure. Yes. I’ve found evidence of all of the above. Then you look at what are the blocks [impediments] between the family and the chemicals? Air? Nothing. Safeguards in the ponds? Nope. There’s been no testing of liners and there’s evidence of leaks. Now you look at terrain, could it be a further block to exposure? Do we have any evidence that it’s reached a source? Yes. Through no fault of their own, their neighbors’ drinking water was contaminated.

  “Now you have air and skin exposure. They’re bathing in it, and ingestion because they’re drinking it.

  “One. You’ve confirmed there’s exposure.

  “Two. Then you’ve confirmed the routes of exposure. Normally you’ve got one route, we’ve got three.

  “Three. Now you’ve got a bunch of toxic chemicals, and you’ve got to ask if combining them multiplies their effect. Take asbestos and smoking. Combine both and your likelihood of getting cancer goes up twenty times. You couldn’t single out one, you had to look at them together, but they needed to know what to look for.

  “The real problem is that we don’t know all the chemicals.”

  Kendra’s line of thinking wasn’t always so easy to follow. Sometimes, when deep in the data, she spoke in a kind of chemical-laden legalese, and at such a brisk clip that a listener risked being left far behind. As her bright interlocutor, John helped translate Kendra’s complex arguments, so that a judge, or someday a jury, could follow. He also used his wife’s findings to prepare questions for upcoming depositions.

  Each evening by eight, the Smiths got the kids home to their pale brick colonial on a cul-de-sac, and settled them down to do homework at their respective desks in the living room. Then Kendra went back to work on the deck that John had built for her. The Smiths had been married twenty years and spent nineteen in their house. John knew his wife loved nothing more than being outside. “Her happy place is the beach,” he said. So he and his brothers built her a porch with skylights, ceiling fans, a wooden floor, a TV, and a red sectional sofa. The porch opened onto their large backyard, which contained the trappings of an active upper-middle-class suburban life: a gazebo, a large soccer net, a swimming pool, a vegetable garden, and a trellis woven with grapevines that John’s great-grandparents brought from Italy nearly a century earlier.

  In their backyard, she traded her pantsuit for a pair of baggy soccer shorts and watched the kids fire soccer balls into the large white net, calling technical advice from the porch to Dakota, twelve; Sienna, nine; and her youngest daughter, Ainsley, who at seven had recovered from her illness and already demonstrated the drive and athletic talent Kendra possessed. The yard was edged with hydrangea bushes Kendra had once tended diligently, and that had lately gone unpruned. Now she sat on the porch’s red sectional reading most nights until two in the morning. Waking at six, she was averaging four hours of sleep a night. From her days at law school, she knew how to perform on lack of sleep. She and John had shot through three years of law school in two and two and a half, respectively. Simultaneously, Kendra had served on the law review and worked as a research assistant for one of her professors. In law school, however, she didn’t have to contend with motherhood. Dakota, Sienna, and Ainsley required as much attention as she could give them. She made a bargain with herself and with John: as long as the kids didn’t feel neglected, she could give every last ounce of herself to her work. Everything else was off the agenda, including events like a coworker’s baby shower. Kendra said, by way of a gentle no, that she just couldn’t expend those hours. Of all the limited resources Kendra was facing in building her case—the incomplete files she was receiving in discovery, the bureaucratic runarounds with the state at the DEP—the sharpest restraints she faced were related to time. “When people talk about work/life balance, I’ve never understood why they use the word ‘balance,’” she told me.

  The Smiths weren’t building one case now; they were constructing three. Each had its own stacks of paper: the Voyles’ case against the DEP, on her desk; Buzz Kiskadden’s appeal for clean water, on Kendra’s office floor; the sprawling case for Stacey and the seven others, in the copy-room-cum–Haney Library.

  Kendra’s methods irked the other side. What she took as thoroughness, they considered a form of overkill that bordered on vendetta. To gather information during discovery, attorneys from one side draft questions known as interrogatories for the other side to answer. A typical number of questions hovers around ten. In her discovery requests, Kendra was averaging hundreds per defendant. She wasn’t asking only the big players such as Range Resources and the Department of Environmental Protection for such answers. Now she was working off a list of as many as seventeen different parties who bore some responsibility, she argued, for what went awry up at Yeager. And she wasn’t only seeing accidents; she suspected she was looking at fraud.

  She discovered very different versions of test results of the exact same water samples. Both came from Beth Voyles’s house. One version belonged to Atlas, a company sampling water that past summer alongside the EPA. The other came from Test America, the lab working for Range. She could see major divergences. The first and most obvious was that on the Atlas test, she could see high levels of nitrates, which can cause respiratory problems and increase the risk of thyroid cancer, along with small amounts of other chemicals, radioactive material, and sand. Nitrates have multiple sources, including manure. They could also be associated with drilling. Yet all of the contaminants were missing from the results that Test America gave to the Voyles and to the Department of Environmental Protection.

  As the plaintiff suit grew, so did the number of defendants implicated in the litigation, which drew in several of Pittsburgh’s top corporate defense firms. “Hell, we’re employing half of Pittsburgh,” John joked.

  After decades of working alongside their opponents, Kendra and John knew them well. But now these colleagues were adversaries, and the Smiths were facing more aggression from the other side than they’d experienced in their careers. Kendra surmised that one defense attorney working for Range Resources, Ken Komoroski, seemed to have a particular problem with her. Kendra said that during a deposition, Komoroski lunged across the table at her. John wasn’t there to see it. He was coaching Dakota at basketball that day. When asked, Komoroski denied any such action. “I have never acted in a way that is unprofessional and that includes towards appellant’s counsel here, Kendra Smith and John Smith,” he wrote in an email. “To be clear, I never lunged, nor could have been perceived to have lunged at Attorney Smith, nor any other counsel in my years of practice.” Yet Kendra recalled other instances she felt were unprofessional, such as when Komoroski called out during a deposition the fact that she played Division One soccer in college, saying something about how this wasn’t a soccer game.

  These kinds of personal comments seemed to Kendra to be a ham-fisted attempt at intimidation, an effort to put her on notice that the other side was looking into her background. They didn’t frighten her. “I kind of laughed,” she told me. “If that’s the best this guy’s got, then he’s in trouble.” Playing soccer for a punishing college coach had taught her a form of mental toughness that she valued. “You walk a fine line as a female in this position,” she said. “There’s a certain amount of it you have to take before you reach out for help without looking like you’re playing the female card.” That mental toughness was one reason why she had both of her daughters play soccer now. Everyone made
mistakes on the field, but making a mistake didn’t let your team down. You let your team down when you made a mistake and refused to get over it. You don’t let anyone get in your head, she told her two daughters. You’re the only one allowed in your head.

  Finally, the antipathy rose to such a pitch that Kendra went to the judge, who decided to sit in on depositions. Kendra suspected these attorneys were acting out because they knew she had the goods. She’d represented railroads and alleged organized criminals from New Jersey, and it didn’t get much tougher than that.

  20 | POLICING THE STATE

  While Kendra clashed with opposing lawyers, John found himself engaged in a fresh battle against the state. In 2011, Pennsylvania’s new Republican governor, Tom Corbett, was bidding to change its Oil and Gas Act in favor of Act 13, a new law that the state and fossil fuel industry largely drafted together. Although Corbett had received $1.17 million in campaign donations from the industry, his interest was more than political. It was ideological: he opposed environmental regulation. Upon entering office, he’d ordered a state environmental website scrubbed of any mention of climate change.

  Despite the unprecedented profits associated with fracking, Pennsylvania charged oil and gas operators next to nothing in taxes or fees for the right to drill. As part of the new give-and-take under Act 13, industry would pay an impact fee to local governments, a flat fee per well. In exchange, companies would be able to bypass old arrangements that required approval from small municipalities. If a driller wanted to dig a frack pond next to a school, say, or in a church parking lot, under the new law, the town would have no right to say no, as long as the pond was at least three hundred feet away. In practical terms, if the new law went into effect, a frack pond could sit five times closer to someone’s house than the one uphill from Stacey.

  John Smith’s concerns about the new law went beyond health and environmental issues. It could spell financial ruin for the small communities he’d been helping to protect by drafting local ordinances. This new law would negate every one of them, and if a town decided to challenge the industry by taking a company to court and lost, the town would have to pay the company’s legal fees. As a solicitor, Smith knew what that meant. His client Robinson Township, for instance, had an annual operating budget of four hundred thousand dollars. If Robinson tried to challenge an oil and gas company that hired corporate lawyers billing at four hundred or five hundred dollars an hour, then a ten-day trial could easily bankrupt the small town.

  The proposed law had other problematic aspects, including one that foes called the physician gag rule: it stipulated that doctors sign a nondisclosure agreement in order to learn what chemicals might have sickened their patients. Under the gag rule, a doctor wouldn’t be able to tell other doctors or even his or her patients the toxic contents found in their bodies. To Smith, this constituted a clear violation of the Hippocratic Oath.

  Just as chilling to Smith was a privacy clause: if a neighbor’s private water source was contaminated by drilling, and he settled with the oil and gas company, the people living next door had no right to know, as long as they relied on private wells instead of public water. In a case like Stacey’s, if Ron Yeager settled privately with Range, he wouldn’t have to say a word.

  Smith wasn’t the only one who saw problems with the new law. The fight against Act 13 didn’t just pit left-leaning environmentalists against conservative Republicans. Two of Washington County’s conservative Republicans led the dissent. Throughout 2011, Dave Ball from Peters Township and Brian Coppola from Robinson Township traveled to Harrisburg along with a Democratic ally, Andy Schrader, to speak out against Act 13. In Washington County, Peters was as rich as Robinson was poor; Peters’s budget amounted to more than $23 million a year, more than fifty times that of Robinson’s. One afternoon, Ball and Coppola met me at the Southpointe Country Club to discuss their objections to the law.

  “I’m not opposed to industry,” Dave Ball said. “But by the same token, I will absolutely defend people’s constitutional rights.” This proposed law was a violation of people’s right to private property, Ball said. These rights were enshrined in Article I of the Pennsylvania Constitution, including the right to protect one’s property from harm.

  For forty years, Ball had worked for U.S. Steel in eight countries, including Venezuela, India, and Thailand. What he’d seen of extractive industries in remote and impoverished places cast a frightening foreshadow. “I’ve seen places immensely rich in resources that are incredibly poor, just like in Appalachia,” he said. To him, the problem was less about the resource and more about the system that sprang up around its extraction: government corruption. “Gas is new, sexy, mobile, agile, and cash heavy,” Ball said. All of these factors gave the industry overwhelming political power in both Pennsylvania and Washington, D.C. As he saw it, this gas boom was eroding public welfare in the form of political payouts like the million-plus dollars that went into the governor’s campaign coffers.

  Ball’s fellow fighter Brian Coppola had other concerns. Working in real estate development, he too believed that allowing companies to “drill everywhere” would destroy property values. Of course people had a right to do what they wanted to on their private property, but they didn’t have the right to inflict harm on others. There was an ancient Latin maxim for this: Sic utere tuo ut alienum non laedas—“Use your own so as not to injure your neighbor.”

  Coppola saw another problem approaching. By 2011, smaller wildcat companies were bidding to be bought up by larger ones. Super majors like ExxonMobil and Chevron were entering shale plays. The Marcellus, in particular, offered the promise of vast returns. But the upside was limited by transportation concerns. Unlike oil, shale gas couldn’t be trucked. It had to travel by pipeline. For the smaller operators, whoever could prove they could get the gas to market would be most attractive to buyers. Each company was building its own infrastructure, much of it redundant, to prove it could get gas to Philadelphia, New York, and other major markets as quickly as possible. Coppola’s township, Robinson, was at the center of this construction glut.

  “Right now these companies are entrenching themselves,” Coppola said. “The argument is that they’re creating jobs, but they’re destroying our long-term wealth, which is based in property. People who can afford to will leave, and that will gut our tax base.” Western Pennsylvania had been through this before. It was part of the oil, gas, and coal cycles of boom and bust. An extractive industry came to a place, bringing with it money and overbuilding, and then it went away, taking jobs and leaving behind a legacy of failing infrastructure and abandoned homes in places like Prosperity.

  * * *

  Despite such dissent, on February 14, 2012, Governor Corbett signed Act 13 into law. His critics called it his sweetheart gift to industry. That day in Robinson, the township held a meeting. The council members decided to ask John Smith to lead a legal challenge against the law. Smith was willing to try, but not as some kind of protest suit or political gesture. “You don’t fight them with shouts, you fight them with facts, and we have the facts,” Smith told me at the time. Working with Stacey, Beth, and Buzz had taught him some of the problems fracking could breed, as well as the state’s inability to stop or fix them. He no longer believed that the state possessed the power and the will to protect its citizens. “In the past, everyone assumed that it was safe and I was one of them,” he said. “We thought that the DEP and EPA were doing their jobs. They weren’t.”

  Like Kendra, John wasn’t interested in the ideological battle between left and right around fracking; he wanted to protect the rights of the little towns that were his clients. He believed the idea of the public good applied to Republicans and Democrats alike, and that companies were violating that principle. However, unless there were grounds to declare the law unconstitutional—and he didn’t see them at first—he wasn’t going to take on the case.

  Frankly, he didn’t want to lose, and he didn’t want to risk setting a bad precedent. Furt
hermore, they had only ninety days to find and write some kind of challenge. And the cost for the townships was prohibitive. Robinson’s budget was hardly the war chest needed to take on oil and gas goliaths, not to mention the state. But Robinson wasn’t alone. Soon other townships contacted Smith, until there were seven in all, including Mount Pleasant, where Range Resources had drilled the first Marcellus well.

  At his desk down the hall from his wife’s office, Smith combed through the proposed law, looking for flaws to attack. Finally, he found something. Under the state constitution, spot zoning was illegal. You couldn’t just carve out a little industrial island in the middle of a residential neighborhood, yet that’s what the new law gave the state the power to do.

  As a small-town lawyer, Smith knew the ins and outs of zoning better than anyone. Zoning was “a police power,” an arcane term that meant the government had not only a right but also a responsibility to protect its citizens from harm. And zoning—between commercial, residential, and industrial spaces—allowed little townships in Pennsylvania to decide where things like adult bookshops and gas stations and cement factories were allowed to set up shop.

  This was the kind of argument few outside attorneys or law professors would think to make. Smith also knew how his conservative clients thought and felt about their property rights. The judges were also likely to be conservative. If Smith could cast his argument in terms of the state government overreaching into its citizens’ God-given rights, he might get some traction in court.

  * * *

  For industry, this new law was as much about managing risk as anything else. Matt Pitzarella of Range Resources called it “predictability.” Having one uniform legal code across Pennsylvania, especially if that code was a permissive one, made it easier for drilling companies to operate. Both the companies and the state argued that natural gas was playing a role in economic recovery and that these little local battles impeded that recovery. In order to solve the problem, under Act 13, state law would trump local law every time.