Amity and Prosperity_One Family and the Fracturing of America

by Eliza Griswold

  The Smiths paid little attention to Gisleson’s questions about Stacey and Beth. They thought he’d proven nothing—simply revealed more of what he didn’t know. At one point, according to the Smiths, he’d had to ask Kendra for help in reading test results. And as the lengthy hearing drew to a close, the Smiths felt it had gone well. Still, given the stakes involved for the state and the possible flood of cases that would follow a court decision in their favor, Kendra wasn’t so sure. She was also cognizant of the costs. She’d raced her experts through their testimony, trying to get them off the stand as quickly as possible, since most charged by the hour. The Smiths were never going to be paid back for what Buzz’s trial cost them, since victory in that suit wouldn’t come with damages. This was also true of their case against the DEP on behalf of Beth Voyles. Victory for the Smiths would mean, simply, getting Buzz clean water. There were also advantages other than money to winning these suits; they helped the Smiths gather evidence for Haney v. Range and garnered public opinion in advance of their case.

  At the end of the trial’s last day, John and Kendra carried their stacks of files out of Piatt Place to the parking lot in darkness. It was nearly 8:00 p.m. by the time they finished loading, and there were no other cars in the indoor lot. Under the green fluorescent lights, Kendra started to cry. After twenty years of marriage, John had never seen her cry at work. Not once. But Kendra felt in her marrow that they were going to lose, and Buzz wasn’t a railroad or another corporate client. He was an indigent man dependent on the state for help that the state refused to give him. John put his arms around Kendra.

  Did we do enough? she asked him.

  We tried the best case we could try, he replied.

  * * *

  One of the common tactics employed in corporate defense is to simply drag out an expensive case, rendering it too costly for plaintiff lawyers relying on settlement fees to continue. But the Smiths did continue, year after year, and that raised suspicions on the other side. Once, when John walked into one of the near-weekly hearings related to the Kiskadden case, he overheard a DEP attorney ask an attorney from Range, Who is paying them?

  While the Smiths were still awaiting the Kiskadden verdict, Range Resources filed a motion asking the court to order the Smiths to reveal who was funding their suits. By now, the Smiths had been fighting in three separate cases against Range Resources and the DEP for three and a half years, and there were those at Range who found it hard to believe that the Smiths hadn’t received a dime. In their September 2014 motion, Range’s attorneys cited the fact that the Smiths often brought two lawyers—John and Kendra—to depose witnesses, which constituted an unnecessary expense. This was true: John often went with Kendra to take depositions in Harrisburg. First, he wanted to learn about these characters, to strategize about how to approach them on the stand. Second, after the level of hostility rose, he didn’t want Kendra to go alone. It wasn’t that he felt he needed to protect her, exactly. Kendra could take care of herself. She just might need a witness for some of the antics she was growing tired of enduring.

  Since the Smiths’ clients were poor, Range’s attorneys argued that they’d developed “a good faith belief during the course of discovery that one or more third parties may be directly or indirectly paying the litigation costs associated with the Plaintiff’s prosecution of the case.” The Smiths responded by stating in legal documents that the motion was based on “mere apparitions and surprising paranoia.”

  “Are Washington County residents expected to have less advocacy or access to our judicial system due to their financial positions?” they asked in their response. Poor people had as much right to protect their health and property as rich people did. This was the cornerstone of environmental justice: a legal concept that had striven since the 1980s to balance environmental benefits and burdens between wealthy and impoverished communities. John Smith scoured legal history to find an ennobling argument about poverty and equal justice. He found this from the retired U.S. Supreme Court justice Lewis Powell Jr.: “Equal justice under law is not merely a caption on the façade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists … It is fundamental that justice should be the same, in substance and availability, without regard to economic status.”

  At the Washington County Courthouse, Judge Debbie O’Dell Seneca called the company’s allegations “offensive.” Soon, however, O’Dell Seneca became embroiled in a scandal of her own. Accused of altering transcripts in a murder trial and eavesdropping on colleagues in the Washington County Courthouse, she was forced to step down, leaving the Haney case orphaned.

  Range continued its efforts to dig out the source of the Smiths’ funding, seeming to believe that the Smiths’ legal challenges were being secretly funded by the Heinz Endowments, a family foundation that focuses on environmental health, among other social causes, in southwestern Pennsylvania. The charge was fairly incendiary: it accused a well-respected civil society group of engaging in subterfuge. The Heinz Endowments had met with Stacey and Beth once, but Range threatened to issue subpoenas to every member of the Heinz family, including Teresa Heinz Kerry and her three sons. The attorneys also subpoenaed other small civil society groups funded by the Heinz Endowments, including the Southwestern Pennsylvania Health Project, which had worked with Stacey and Beth while conducting a study on fracking-related illnesses, and the Center for Coalfield Justice. “We’ve never given Smith Butz any money,” Veronica Coptis, the executive director of the Center for Coalfield Justice, told me. “But when we checked our books we found that in fact, they’d given us a two-hundred-dollar donation.”

  There was another working theory among Range employees as they searched for a money trail leading to the Smiths: the money was coming from Russia and being funneled through a foundation like Heinz in an attempt to disrupt the U.S. energy industry. After all, there was credible evidence to suggest that Russia was funding the fight against fracking abroad. But there was no evidence to suggest that Russia, or anyone else, was funneling money to the Smiths.

  In October 2015, the Smith Butz firm found itself the subject of an audit by the state of Pennsylvania. The auditors wanted to see the Smiths’ records related to sales tax, which was odd. Other than buying office supplies, law firms are exempt from paying sales tax. However, if the firm had received some money that wasn’t a straight legal fee, say for consulting or lobbying, that money would be subject to tax and would certainly appear on an audit. Although there was no way to prove it, it seemed to the Smiths that the state of Pennsylvania was singling them out for scrutiny as a result of their suits against the DEP and Act 13. It wasn’t a hard leap for the Smiths to make: the auditor said he was looking for income including “lobbying services.” But the audit turned up no such income.

  The Smiths said little about the pressure they were under to Beth and Stacey, who were still facing their own ongoing health issues. For a decade, since long before the gas wells arrived, Stacey had suffered from an underactive thyroid. The condition, called hypothyroidism, was more of a nuisance than anything else; she was always cold.

  Still, every six months, she visited her endocrinologist’s office, where she saw a nurse practitioner named Donna Gisleson. The two women were friendly, and Stacey recognized in Gisleson a sympathetic listener and an experienced professional. On one visit that February, while Stacey perched on an examining table, Gisleson ran her fingers over Stacey’s neck and listened to her chest with a stethoscope. What happened next is contested. According to Stacey’s version of events, Gisleson was gently poking at her when the nurse practitioner started up a conversation about Buzz Kiskadden. His case had been in the newspaper, and Donna Gisleson knew what Stacey had been going through with the gas wells, so the first few beats didn’t seem out of the ordinary. But Stacey grew uncomfortable when she heard Gisleson calling Buzz’s story into question. As Stacey recalled it, Gisleson said that she didn’t believe him.
She wagered the junkyard he lived in had likely contaminated his water. What’s more, as Stacey listened, the nurse went on, saying Buzz didn’t have a pre-drill, so there was no way for Buzz to prove contamination anyway.

  When Stacey heard the word “pre-drill,” she started. The word was fairly technical and so deeply embedded in the opposition’s case that she wondered how Gisleson knew it. The nurse explained that her husband, John, was one of the lead attorneys facing off against Buzz. John Gisleson was a big gun, Stacey recalled her saying, and Range had brought him in because he was well-known for being a tough litigator. According to Stacey’s version, Donna said her husband had been looking at medical tests as part of discovery when he saw his wife’s name and asked Donna if Stacey was one of her patients. Yes, she said. She’d seen Stacey for years and Stacey wouldn’t make up symptoms. Stacey recalled Donna saying breezily that she knew that Stacey didn’t have a pre-drill either. It would probably be smarter for her to settle than to risk trial. As Donna pressed delicately on her throat to palpate her thyroid, Stacey felt her gorge rise.

  Oh, we’re not looking to settle, she remembered replying. We’ve got plenty of evidence.

  Stacey called the Smiths on the car ride home. John Gisleson was indeed a lead attorney for Range on Buzz’s case and on hers. As a nurse living and working in such a close-knit community, Stacey was accustomed to treating her neighbors for all manner of ailments and saying nothing to anyone about who and what she’d seen. To guard against any infraction, she stringently followed the rules of the Health Insurance Portability and Accountability Act (HIPAA), which she believed made it a violation to talk about confidential patient issues with anyone, let alone your husband, an attorney. The Smiths thought what Donna Gisleson had said sounded pretty unusual, but they didn’t handle such matters. They recommended that Stacey retain an attorney who dealt with HIPAA issues.

  So Stacey signed on with Jon Kamin, who brought a case against Donna Gisleson, arguing that the nurse broke her professional code of conduct, and the law, by discussing Stacey with her attorney husband. The Gislesons denied the violation, responding in legal documents that Donna had in fact said something nice about Stacey—that she wouldn’t “make up” symptoms. The allegation, they argued, was an attempt to blacken someone’s name. And furthermore, Stacey had waived her right to privacy when she signed off on Haney v. Range, in which she was named plaintiff, rendering her medical records available to opposing attorneys. Eventually, when the case came before a judge, Donna Gisleson’s lawyer asked him to throw it out. Her husband was sitting in the courtroom. To his thinking, this suit was nothing but retaliation. He was a lead counsel working for Range, so he figured the Smiths were punishing him by embarrassing his wife, and trying to get him removed from the Haney case. The judge disagreed. Haney v. Gisleson was moving forward. (Donna Gisleson’s attorney, while declining to comment on litigation, said the claims are “completely false and are denied in total.”)

  After Jon Kamin won the argument and prepared to leave, Mr. Gisleson approached him. Kamin, an aggressive attorney in his own right, was accustomed to confrontations on behalf of his clients. But the degree of heat that ensued in their exchange was unusual. The two men disagree on what was said next. Gisleson recalls telling Kamin that John Smith was a liar, and Kamin remembers Gisleson saying, Tell John Smith I’m coming for him.

  30 | CHASING GHOSTS

  By 2015, the Smiths had been fighting for two years to try to make Range obey the court order and hand over a definitive list of chemicals—from soap to cyanide—used on the Yeagers’ hillside. But the company refused to disclose, and there was good reason for that. Range wasn’t simply being obstructionist; it was likely the company didn’t know, since some of the products its subcontractors used were proprietary, and their contents were secret.

  Range had a problem. If they admitted this fact, it could put them in violation of their very public claim that they did disclose all the chemical additives used in a frack and were the first company to have done so. When John Smith deposed Ray Walker, Range’s chief operating officer, he pushed this point of full disclosure. “So the qualification is you’ll tell the public everything you know?” “Everything we know, yes,” Walker replied. “But there are things you don’t know?” Smith asked. “Of course,” Walker said. The Smiths believed that this admission had legal and financial ramifications: since Range had touted its full disclosure to investors as demonstrable fact, this could prove a violation of the Securities and Exchange Commission law.

  In the absence of this list, Kendra did her own sleuthing late at night, her legs curled beneath her on the porch’s red couch, with hundreds of pages of material-safety data sheets, which a company is legally required to keep to list the harmful side effects of its products. Although the data sheets were helpful, they weren’t definitive by any stretch. The companies weren’t required to divulge secret ingredients; they could simply use the word “proprietary.” When identified, most of the chemicals were listed only by numbers and letters, which Kendra was learning to decipher. “MC” stood for Multi-Chem, the chemical company now owned by Halliburton, which had supplied the chemicals used up at the site. “MX” stood for experimental. Then there was “T.”

  What “T” stood for was anyone’s guess. There was no definition on Multi-Chem’s products or website, so Kendra surfed other industrial websites for clues, including that of Halliburton, which had bought Multi-Chem in 2011. Halliburton did indeed list products that ended in the letter “T”; they were tracers, the chemical and often radioactive signatures used to mark exactly where a frack and its fluids went. Kendra remembered what the DEP attorney had said during the Kiskadden trial about the lack of a silver bullet. What was a tracer, she wondered, if not a silver bullet?

  Through deposing a Multi-Chem employee who wrote data sheets, Kendra learned her supposition was right. “T” did mean tracer. The first tracer she discovered turned out to be one of thirteen used at the Yeager site.

  She found the others by accident. From the beginning of discovery, Kendra had been asking Range to produce sign-in sheets from companies entering and leaving the site. It was the easiest way to find out who’d worked up there. Range responded that these sheets had been destroyed. Then one day a sign-in page blew down the hill and into Beth and John’s yard. Beth gave it to the Smiths, who sent it back to Range without reading it to make a point. The next time Kendra caught sight of one of these sign-in sheets, it arrived in a stack of discovery documents from Universal Well Services, the company that conducted the frack. On it, Kendra saw the name of a company called ProTechnics, and during a deposition, she asked a Universal Well employee if he knew what ProTechnics did.

  ProTechnics was a tracer company, he explained. They manufactured both chemical and radioactive tracers. For each of the eight stages of the frack, the company had used a different tracer to map where the fluids and fractures went. ProTechnics pumped the chemical tracers into the frack fluid. It also encapsulated its radioactive tracers in the ceramic pellets used to prop open the fractures in the rock and allow the gas to flow back up to the surface.

  The Smiths took their new evidence of tracers—and the fact that Range had failed to disclose them for years—to the court. They asked the new judge assigned to the case, William R. Nalitz, to compel ProTechnics to divulge the names of the specific elements in their chemical and radioactive tracers. It was probably too late to find the radioactive tracers, which had likely decayed, but maybe not the chemical ones. If Kendra could find one of these signature chemical tracers in her clients’ water, she’d be able to prove that Range had contaminated their water. “I just need to find one,” she told John, “and we’ve got a slam dunk.”

  To determine whether or not Kendra had the right to learn what was in both kinds of tracers, among other issues, the judge held a hearing. On the stand, a ProTechnics executive refused to tell Kendra what was in the chemical tracers. Doing so would render their trade secret public and might ru
in their business, he argued. He did, however, disclose the contents of their radioactive tracers, which contained Iridium 192, Antimony 124, and Scandium 46. They were marketed under the label ZeroWash® and made in a process that was supposed to seal the radioactive substances so that they couldn’t be washed out of the ceramic pellets. In a scientific study conducted by Texas A&M, the pellets released only a “negligible” amount of radioactive isotopes. But Kendra contended that a negligible amount could be a concern, even if their half-lives were short, as these three elements’ were. A half-life can be misleading; technically the term describes the amount of time it takes for half of a radioactive substance to decay. For each of the tracers, within three months, half of their radioactivity decayed. But what about the other half?

  And even if the radioactive elements in the tracers proved to be harmless, Kendra was learning about other issues related to radioactivity at the site. Fracking could also bring naturally occurring radon from miles underground to the earth’s surface. Radon is a known carcinogen and a leading cause of lung cancer in the United States.

  Searching for potential violations, Kendra began to investigate the laws surrounding the use of such material. Tracking radioactive tracers turned out to be particularly difficult. Since radioactive material was hazardous and fell under the Nuclear Regulatory Commission, its use required a permit from the DEP. When Kendra went looking for one, the DEP told her that it was classified as a matter of national security. She also found that the DEP knew that radioactive tracers had been setting off landfill radiation alarms in Pennsylvania for years.