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The New Power Brokers

He is West Virginia’s Speaker of the House — and a Lawyer for Natural Gas Companies

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Delegates give newly elected West Virginia House of Delegates Speaker Roger Hanshaw, R-Clay, a standing ovation following an August vote elevating him to the position. Photo: Chris Dorst, Charleston Gazette-Mail

State ethics rules seldom prevent lawmakers from proposing or voting on legislation that affects industries they work for.

This article was produced in partnership with the Charleston Gazette-Mail, which is a member of the ProPublica Local Reporting Network.

Toward the end of this year’s legislative session, a little-noticed bill was moving through the West Virginia House of Delegates to limit legal challenges that had slowed new natural gas-fired power plants in the state.

Delegate Roger Hanshaw, a Republican lawyer from Clay County who was serving as vice chairman of the Judiciary Committee, took to the floor to explain the legislation.

“This bill is a little inside baseball to practitioners of environmental law in West Virginia,” explained Hanshaw, a supporter of the bill.

It wasn’t the first time that Hanshaw engaged in some pretty effective legislative inside baseball on energy bills.

Last year, Hanshaw engineered passage of a bill that gave natural gas companies a broad exemption from chemical tank safety standards that West Virginia put in place after a 2014 spill that contaminated drinking water for 300,000 people.

Hanshaw was elected speaker in late August, succeeding Tim Armstead, who is now a justice on the West Virginia Supreme Court. Hanshaw is expected to be re-elected speaker in January. In the position, Hanshaw wields significant control over which bills are called up for votes and which are sent to committees to effectively die.

When he’s not in the state Capitol, Hanshaw makes his living as an attorney with the Charleston-based firm Bowles Rice, where his clients have included natural gas companies and gas industry lobby groups.

Over the last three years, he has represented the operator of a Fayette County natural gas waste disposal site in legal battles with state regulators and nearby landowners. He argued its case before the state Environmental Quality Board and the state Supreme Court. Then, he filed a brief on behalf of two industry groups when the case went to a federal appeals court.

Under the state’s ethics laws, those overlapping interests aren’t enough to keep Hanshaw from voting on matters affecting the industry, including the bill to help stop coal-funded legal challenges to power plants.

Legislative controversies over natural gas have grown in recent years as the industry’s production has greatly expanded. Hanshaw illustrates both the industry’s increasing ties to lawmakers and how West Virginia ethics laws sometimes leave state residents in the dark about such potential conflicts.

West Virginia’s ethics laws allow legislators to vote on matters that would benefit themselves, their businesses and their clients. In fact, a House policy, known as Rule 49, forces them to vote, so long as at least four others also stand to benefit.

In February, for instance, more than a dozen delegates were ordered to vote on a bill to make it easier for gas companies to assemble larger mineral tracts for drilling, despite asking to be excused because of potential conflicts. One of those lawmakers is the in-house counsel for a gas company.

A ProPublica and Charleston Gazette-Mail review found that over the past five years, the House speaker approved just 14 of 245 delegate recusal requests, a rejection rate of 94 percent.

Speaker Roger Hanshaw Photo: West Virginia Legislature

Hanshaw’s financial disclosure, filed with the state Ethics Commission, makes no mention of his connections to the natural gas industry. It lists his employer as Bowles Rice and describes his work as the “private practice of law.”

Hanshaw says he’s able to separate his legal practice from his work as a lawmaker, even when the interests overlap. In an interview in mid-November in his Capitol office, he said that the natural gas industry represents less than half of his legal practice, and that the work focuses mostly on advising clients about financial transactions or regulatory compliance rather than litigation.

“I represent whoever comes through the door.”


Hanshaw isn’t the only legislator with experience in West Virginia’s oil and gas business. He’s not even the only one at his own law firm.

Sen. Corey Palumbo, D-Kanawha, also is a partner at Bowles Rice. His practice areas include “oil and gas litigation,” according to the law firm’s website.

Palumbo has litigated against landowners on behalf of gas producers, work that drew attention two years ago when he was the co-sponsor of an unsuccessful bill to make it harder for residents to sue gas companies for damaging their property.

Palumbo said recently that he doesn’t remember a lot of the details of that legislation or exactly how he came to co-sponsor it. But he said that he represents a wide range of businesses in litigation, and that gas companies make up less than half of his practice.

“Everyone is sort of shaped by who they are and what they do,” Palumbo said. “I’m someone who represents business, and that shapes my views sometimes.”

Palumbo said he doesn’t make legislative decisions based on what would make businesses, including his clients, happy. “I just try to do what’s right,” he said.

More than a dozen lawmakers who served during the 2018 regular session listed some financial connection to the gas industry on their annual disclosure forms filed with the state Ethics Commission. Delegate Moore Capito, a Kanawha County Republican, for example, reported on his financial disclosure that he is an in-house counsel for Greylock Energy, a gas company.

So should those lawmakers be voting on gas industry legislation?

“I think the obvious answer to your question is no; legislators shouldn’t be voting on issues that affect their own business interests,” said Julie Archer, project manager for the West Virginia Citizen Action Group, which advocates for stronger government ethics standards. Archer said that West Virginia’s Ethics Act “seems pretty clear” that lawmakers should recuse themselves, but “it also gives them a lot of wiggle room” to vote anyway.

Part of the issue is that West Virginia has a citizen Legislature, like 40 other states, in which lawmakers keep their day jobs but come to Charleston for 60 days a year and a few days each month.

One major strength of such arrangements is that members with different backgrounds can use their varying areas of expertise and experiences to help educate colleagues as they go through the process of making laws.

For example, Democratic state Sen. Mike Romano, a lawyer from Harrison County, uses his past experience as an accountant in the gas industry to grill lobbyists about gas leasing and royalty bills.

Yet, Romano says he sees a clear problem with lawmakers who work in the gas industry voting on legislation that affects that industry. “That presents a clear conflict of interest,” he said.

Some conflicts, though, aren’t even disclosed. Lawmakers who are lawyers like Hanshaw don’t have to identify their clients, even if they represent parties that have vested interests in the outcomes of particular bills. The state Ethics Commission has never considered requiring those details, the agency’s executive director said.

Romano and Palumbo both said they believe requiring some kind of disclosure, such as general practice area or large clients, would be a good idea. “The more people know, the better choices they can make at the ballot box,” Romano said.

In written responses to questions from the Gazette-Mail and ProPublica, Hanshaw initially dismissed the idea, saying forcing lawyers to identify clients would violate legal ethics rules.

In the mid-November interview, however, Hanshaw conceded that some types of information about clients, such as when lawyers handle litigation, are a matter of public record that could be disclosed in Ethics Commissions filings. He said there are ways to let the public know what kind of law an attorney practices and generally what kinds of clients attorney-legislators have.

Hanshaw said that West Virginians have “a heightened interest” in government ethics rules this year in the wake of a spending scandal that prompted the impeachment of four state Supreme Court justices and the resignation of the fifth. (Two of the justices remain on the court.)


More than four decades ago, lawmakers in the West Virginia House of Delegates set a strong standard for themselves, aimed at preventing conflicts of interest from affecting their legislative votes.

In 1975, House members approved Rule 49, which said that any member “with a personal or private interest” in a bill was required to announce that interest and not vote.

Two years later, though, legislators watered the rule down. Instead of prohibiting members from voting on matters in which they had an interest, they would be told not to vote only if the matter affected them “directly and not as one of a class.”

In 2017, the rule was amended to define a class as five or more similarly situated people.

The way the rule has been interpreted in recent years, delegates are seldom ever excused from voting.

Take, for example, the February vote on the bill to make it easier for gas companies to force unwilling gas owners to allow drilling on their property.

More than a dozen House members said they had a conflict and asked to be excused from voting.

Judiciary Chairman John Shott, R-Mercer, was the first to ask. He said his father owned one-one hundred sixtieth of some gas reserves and he might eventually benefit from the bill when he inherits that gas.

Then-Speaker Armstead, R-Kanawha, ruled that Shott did not stand to benefit any more than anyone else and told Shott he had to vote. (Lawmakers do not have the ability to abstain from votes in West Virginia.)

A parade of other delegates followed with their own requests not to vote.

Some were like Shott. They owned some small piece of a natural gas tract that might be made more accessible to drilling if the bill passed. Some had existing gas leases they felt might become more lucrative.

Others, like Capito, worked directly for a gas company. Capito said he always asks for a Rule 49 exemption from voting on oil and gas bills “in an abundance of caution.”

Armstead made them all vote. The bill passed on a 60-40 vote. The 20-vote margin meant recusals wouldn’t have swayed things either way. Some of those who asked to be excused voted against the bill, while some voted for it.

Hanshaw was not among those who asked for a Rule 49 exemption, because he said he did not believe his legal work for the gas industry was a conflict with that bill. He voted for the bill.

As the natural gas bill illustrates, Rule 49 seldom results in members not voting on legislation where they may have a conflict of interest.

“It’s rare,” House Clerk Steve Harrison said. “One of the things about having a citizen Legislature is that there are so many bills that are going to affect the person or affect the business that there is an interest there, but it is almost always as a member of a class.”

A bill that affects only a business owned by a delegate would be an example of a conflict that qualifies for being excused from voting, Harrison said.

Angie Rosser, executive director of the West Virginia Rivers Coalition, worries that lawmakers who are employed by certain industries might “naturally take cues from those industries on policy decisions.”

She thinks the system needs to be changed.

“The issue seems magnified in West Virginia because there are so many political ties to industries now seeing profit benefits from the rollbacks of various regulations,” she said.


Just as Hanshaw is not the only West Virginia legislator with ties to the gas industry, the gas industry is not the only politically powerful sector with links to lawmakers. The chairman of the Senate Energy, Industry and Mining Committee is a coal mine manager, in charge of safety at a Mettiki Coal operation. The House Democratic whip is a United Mine Workers of America union official. Other lawmakers work in the insurance business, as teachers, or run auto parts stores or funeral homes.

But the Ethics Commission has found that being speaker of the House is different from being a rank-and-file lawmaker. While “certain conflicts of interest are inherent in part-time service” as a lawmaker, it has said, the presiding officer “has an even higher duty” to the citizens of the state. The speaker, for example, controls committee assignments and agendas, as well as the House floor agenda.

Commissioners examined the issue in 2012, when then-Speaker Rick Thompson, a Democrat, sought their approval to take a new outside job as a lawyer for the West Virginia Education Association, a powerful teachers’ union.

This arrangement was too much, as far as the commissioners were concerned. They said it presented an “inescapable conflict” for a House speaker to also work for a lobbying group. They also ruled that, because Thompson had been speaker for several years at that point, the job offer might appear to the public like the association was hiring him “because of his unique ability to influence legislation.”

Hanshaw says his situation is distinct from Thompson’s and more closely mirrors that of Armstead, his predecessor.

Armstead had been a House member since 1998 when, in 2014, the Republicans won a majority and elected him speaker. But Armstead was also an in-house lawyer for Columbia Gas Transmission, a pipeline company. He worked mostly in the company’s commercial division, and mostly on issues outside West Virginia.

Ethics commissioners said Armstead could continue to be speaker and hold his job because he had held the gas company job for more than a dozen years.

“That is me,” Hanshaw said. “I was a lawyer at our firm before I was ever elected to the House at all.”


With a doctorate in chemistry from Notre Dame, experience litigating over environmental issues and certification as a parliamentarian, Hanshaw has a leg up on many citizen legislators in navigating the lawmaking system. Like Romano’s inside knowledge of the gas business, Hanshaw said his experience can help on issues involving science or regulatory matters.

In 2014, the year Hanshaw was elected to the House, a chemical storage tank just upstream from the regional drinking water intake in Charleston leaked into the Elk River, contaminating the supply and prompting a “do not use” order that lasted up to a week for some residents. In response, both houses of the Legislature unanimously passed a tough bill adding new safety rules for aboveground storage tanks around the state.

Starting in 2015, as the water crisis faded, various industry groups tried to have the law revisited. The state’s growing oil and gas industry complained the loudest.

House Speaker Roger Hanshaw makes a point during a Judiciary Committee meeting in 2017, when he was the lead sponsor of legislation rolling back chemical tank safety regulations for the natural gas industry. Photo: Kenny Kemp, Charleston Gazette-Mail

In 2017, Hanshaw introduced a bill to give oil and gas operations a broad exemption from the bill.

After the bill passed, Hanshaw was one of three lawmakers honored as “Champions of Industry” by the West Virginia Manufacturers Association.

In an interview, Hanshaw said he introduced the bill because three small oil and gas companies in his district raised concerns about the chemical tank regulations.

None of the companies was a client, Hanshaw said. And even if they had been, he said, he doesn’t get into discussions with clients about legislation that might help them.

“I don’t let people come in here and talk about business,” he said. “And I don’t let people come to my daytime job and talk about the Legislature.”

ProPublica news applications developer Derek Willis contributed to this report.

Kate Mishkin and Ken Ward Jr. cover the environment, workplace safety and energy, with a focus on coal and natural gas for the Charleston Gazette-Mail. Email Kate at kate.mishkin@wvgazettemail.com and follow her on Twitter at @katemishkin; email Ken at kward@wvgazettemail.com and follow him on Twitter at @kenwardjr.

The New Power Brokers

Fracking Companies Lost on Trespassing, but a Court Just Gave Them a Different Win

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Mary Milkowski said the dust from passing trucks was so bad her family stopped using their porch. Photo: Raymond Thompson Jr./ProPublica

This article was produced in partnership with the Charleston Gazette-Mail, which is a member of the ProPublica Local Reporting Network. It was originally published by ProPublica.

A week after the West Virginia Supreme Court unanimously upheld the property rights of landowners battling one natural gas giant, the same court tossed out a challenge filed by another group of landowners against a different natural gas company.

In the latest case, decided Monday, the court upheld a lower court ruling that threw out a collection of lawsuits alleging dust, traffic and noise from gas operations were creating a nuisance for nearby landowners.

Charlie Burd, executive director of the Independent Oil and Gas Association of West Virginia, said the latest ruling lets “Wall Street know capital investment in oil and natural gas is welcome in West Virginia” and increases the possibility of more such investments in drilling and in so-called “downstream” chemical and manufacturing plants related to the gas industry.

In the property rights case last week, the justices set a clear legal standardthat natural gas companies can’t trespass on a person’s land, without permission, to tap into gas reserves from neighboring tracts. In Monday’s case, the justices didn’t articulate a new legal precedent.

The mixed messages of the two cases show that “this is new litigation and the theories are evolving,” said Anthony Majestro, a lawyer who represented residents who lost their nuisance action before the Supreme Court.

“As the Marcellus shale drilling has expanded, there have been conflicts between surface owners and the companies that are drilling,” Majestro said. “Absent some legal requirement to require the industry to be good neighbors, I’m afraid we’ll continue to have these situations.”

Majestro’s clients were a group of residents in the Cherry Camp area of Harrison County, in north-central West Virginia. They wanted Antero Resources, the state’s largest gas company, to compensate them for unbearable traffic, “constant dust” that hangs in the air and settles on homes and vehicles, disruptive heavy equipment noise and bright lights that shine into their homes day and night.

The case focused on two dozen wells and a compressor station on six pads. The plaintiffs argued that their lives were being interfered with by Antero’s production of gas from beneath their property, even though the wells were on neighboring land, not on their own properties.

Across West Virginia’s gas-producing region, many residents own the surface of the land where they live, but don’t hold the minerals located beneath. Often, rights to the natural gas were signed over decades ago, long before drilling and gas production of the size and scope now conducted was even dreamed of.

The two court cases were featured last year as part of a series of stories by the Gazette-Mail and ProPublica that explored the impacts of the growth of natural gas on West Virginia communities.

In some ways, the Antero case was more complex than the earlier matter, in which the state court ruled clearly for Doddridge County residents Beth Crowder and David Wentz in their dispute with EQT Corp., West Virginia’s second-largest gas producer.

EQT had built a well pad and pipelines on Crowder and Wentz’s property to reach natural gas not located beneath their farm, but under neighboring tracts, including some that were thousands of feet away. Modern natural gas drilling uses horizontal drilling to use smaller numbers of larger wells to reach much greater amounts of gas.

Justice John Hutchison wrote the court’s 5-0 decision against EQT, including a new point of law that sets a precedent that calls what the company did trespassing and forbids it from being done in the future.

The ruling in the Antero case was a split, 3-2 decision, and the opinion by Justice Evan Jenkins included no new points of law setting precedent for future cases.

Instead, his opinion was based on the view that Antero had gas leases that created a right for it to do whatever was “reasonably necessary” to get at its mineral holdings.

Antero spokeswoman Stephanie Iaquinta said, “We appreciate the court’s thorough review of this important matter and its decision.”

West Virginia Supreme Court Justice Beth Walker. Photo: Jennifer Bundy/West Virginia Supreme Court of Appeals

Chief Justice Beth Walker wrote a concurring opinion, pointing out that the majority decision wasn’t necessarily getting to the heart of the matter: whether the kinds of gas industry impacts complained about by the Harrison County residents constitute a legal nuisance.

And Justice Margaret Workman wrote a strongly worded dissent, saying that the court had not only ducked the central legal issue in the case, but that it had usurped the authority of a jury to decide if the facts of how Antero operates should be deemed to be “reasonably necessary” to produce natural gas.

“For a century, the tenor of our mineral easement case law, in each temporal and technological ideation, has been that there must be a balance of the rights of surface owners and mineral owners,” Workman wrote. “Rather than making any attempt to establish legal guidance for that goal in this new context, the majority endorses a gross inequity that effectively gives this new industrialization carte blanche to operate without any regard for the rights of those who live on the land.”

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The New Power Brokers

Residents Say Natural Gas Production Is Marring West Virginia. And the Legislature Isn’t Doing Anything About It.

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The West Virginia House of Delegates. Photo: Perry Bennett/West Viginia Legislative Photography

Though studies recommended additional protections years ago, lawmakers have not taken action to put them in place. But when residents sued, a Supreme Court justice said it was the Legislature’s job.

This article was produced in partnership with the Charleston Gazette-Mail, which is a member of the ProPublica Local Reporting Network.

West Virginia Delegate Terri Sypolt says she understands how natural gas drilling has changed the look and feel of communities in the state, bringing an influx of noisy truck traffic and construction.

“I’m thinking about a neighbor’s dog howling for two years right at your doorstep,” said Sypolt, a Republican from Preston County, in the northern region of the state.

Del. Terri Sypolt. Photo: West Virginia Legislative Photography

So when she returned to Charleston for this year’s legislative session, she introduced a bill for the third consecutive year to monitor the air and noise around drilling operations, hoping her colleagues would take action to help residents.

The bill didn’t make it onto a committee agenda, let alone to the floor of the House of Delegates.

As natural gas booms around the Marcellus Shale, nearby residents continue to bear the burden of the industry’s growth. Many live with constant light, truck traffic, dust and noise from gas production fueled by horizontal drilling and hydraulic fracturing, or fracking, as the Gazette-Mail and ProPublica chronicled last year. Business groups and the state coal association have argued in court filings that the inconveniences are unavoidable.

With days left in the legislative session, proponents of reform have essentially given up. The deadline has passed for bills to initially clear the House, and lawmakers and groups that have pushed for protection for residents have moved on to other issues.

Delegate Barbara Fleischauer, a Democrat from Monongalia County, in the northern part of the state, sponsored legislation this year to increase the distance between drilling and homes. But even early in the session, she gave it little chance of passing and said she’s now focused on legislation that would protect women from discrimination and unequal pay.

Del. Barbara Fleischauer. Photo: Perry Bennett/West Virginia Legislative Photography

Her bill would increase the “limit of disturbance” of a drilling operation from 625 feet to 1,500 feet of a home, meaning people would be farther removed from the noise, dust and light. It also would require drilling companies to set up real-time monitoring and compensate landowners for any property value decrease.

She’s introduced similar bills every year since 2015, but they’ve never made it out of the House of Delegates Energy Committee.

“You’re the first person to ask me about it,” she told a reporter in January.

Delegate Mike Pushkin, a Democrat from Kanawha County, sponsored legislation to protect surface owners from 2015 to 2017, but he didn’t bother this year.

“I’m more kind of on bills that I feel like I can get support for and get passed,” he said. “I feel like the current climate of the Legislature — sometimes those of us who come down on the side of property rights and come down on the side of protecting the environment, air, water, land — a lot of times, these days we find ourselves playing defense.”

The inaction isn’t what was promised in 2011, when then-Gov. Earl Ray Tomblin signed into law the Natural Gas Horizontal Well Control Act. The law included a variety of new environmental protection standards, but it delayed some key protections for residents until mandated studies of those issues were completed by the state Department of Environmental Protection and West Virginia University.

Those studies were completed in May 2013 and recommended heightened safeguards, including a more stringent setback, or a buffer zone, measured from the edge of drilling operations to homes, and building a fence or planting trees to curb “problematic” noise levels. Lawmakers never acted on those recommendations under either Democratic or Republican leadership. Under the current governor, Jim Justice, the state Department of Environmental Protection revoked a rule that would have protected residents from some noise and light.

Downstream Strategies, a Morgantown-based environmental consulting firm, conducted its own study about the effects of natural gas drilling and extraction in 2017.

According to the report, well pads, which are clearings where horizontal natural gas wells are drilled into the earth, grew from 1.6 acres, on average, to 2.4 acres between 2007 and 2014. In that time, the land area covered by well pads and wastewater impoundments grew from 12 acres to 1,286 acres. The solution, the group argued, was to require buffer zones between drilling and sensitive areas, like schools and public land.

Evan Hansen, a Democrat from Monongalia County, co-authored the study and was elected last year to a seat in the House of Delegates. This session, he co-sponsored Sypolt’s bill to implement the DEP and WVU study recommendations, saying he is interested in applying the best science.

Del. Evan Hansen. Photo: Perry Bennett/West Virginia Legislative Photography

“I don’t think anyone in the industry wants to harm people, so there’s that,” Hansen said. “I think they want to be good neighbors. And on top of that, I think there are less likely to be litigation expenses and delays due to litigation.”

But Delegate Bill Anderson, who chairs the House Energy Committee and sets the agenda, said there’s no “appetite” for the bills.

“Well, they’re not as high on my priority list as some other bills,” said Anderson, a Republican from Wood County.

Anderson said he remembers visiting communities affected by Marcellus Shale drilling in 2011. He wanted a 1,000-foot distance between wells and homes, he said, but lawmakers ultimately

decided on a 625-foot distance between the center of the pad and a house, which remains the law.

“I don’t think the industry is insensitive to the needs of the people in the community,” he said, “but people in the community need to understand the needs of the industry, if we’re going to have the benefits in terms of jobs.”

The state’s oil and natural gas industry employed about 12,000 people in drilling and extraction jobs in 2017, according to WorkForce West Virginia, which is a division of the state Department of Commerce. The West Virginia Oil and Natural Gas Association, the Independent Oil and Gas Association and the DEP did not respond to requests for comment for this story.

This legislative session, Anderson’s committee moved along bills he co- sponsored that are favored by oil and gas organizations because they would make it easier and cheaper to drill. One would allow companies to drill horizontal deep wells close together. Another would remove the severance tax on low-producing oil and gas wells. The bills passed out of Anderson’s committee and are pending in other committees now.

In November, House Speaker Roger Hanshaw said he thought the DEP might be best equipped to handle the 2013 studies’ recommendations in its rulemaking process.

“Protection of surface-owner rights is important and, from time to time, we do need to review those rules to make sure they still comport with both current industry practices and current surface-owner and homeowner needs,” said Hanshaw, a gas industry lawyer and Republican from Clay County whose conflicts of interest were detailed last fall by the Gazette-Mail and ProPublica.

Those decisions, he said, could be made by the DEP. But the DEP hasn’t acted, and recommended in 2013 that the Legislature take action.

Even as the Legislature declines to act, there are signs that the courts don’t want to get involved either — saying it’s the Legislature’s responsibility.

In January, the West Virginia Supreme Court heard arguments from a lawyer representing four families who live in Harrison County and say they face constant light, noise and traffic issues from Antero Resources’ Marcellus Shale drilling. The lawyer argued that a jury should determine whether these kinds of disturbances count as a nuisance, although lower courts had dismissed the case.

In response, Justice Evan Jenkins asked why the matter belonged in the courts and not before lawmakers.

“Why should this really not be an issue for the Legislature to address, rather than a jury issue on any given nuisance claim to decide what is reasonable or not?” he said.

The court hasn’t ruled yet, and oral arguments in a related case are scheduled for March 12.

Citizen groups said they now have different priorities, too. The Surface Owners’ Rights Organization, which has strongly pushed for the implementation of the studies, has shifted focus to getting the DEP to clean up abandoned wells, said Dave McMahon, co-founder of the group.

A lobbyist for the West Virginia Farm Bureau said it would support the legislation, but it has other priorities, as well.

“If you have a well pad right next to your house going 24/7 and you can’t sleep in your own home, that’s ridiculous, that should not happen,” said Tom Huber, president of the West Virginia Royalty Owners Association. Still, he said, the bill wasn’t as high a priority as a bill to reform the way property is divided among heirs.

The failure to act on recommendations isn’t new, said Angie Rosser, executive director of the West Virginia Rivers Coalition. The Legislature routinely stalls its decision-making, saying it needs more information, she said. And then, when lawmakers receive that information, they often refuse to act, putting citizens at risk.

That’s not just frustrating, she said, it’s dangerous.

“There’s no explanation I can come up with for why these study recommendations have just sat there, other than complete political paralysis when it comes to doing anything that may draw industry opposition,” Rosser said.

Kate Mishkin covers the environment, workplace safety and energy, with a focus on coal and natural gas for the Charleston Gazette-Mail. Email Kate at kate.mishkin@wvgazettemail.com and follow her on Twitter at @katemishkin.

This story was originally published by ProPublica and the Charleston Gazette-Mail.

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The New Power Brokers

Powerless: What It Looks and Sounds Like When a Gas Driller Overruns Your Land

Mary Milkowski said the dust from passing trucks was so bad her family stopped using their porch. Photo: Raymond Thompson Jr./ProPublica

This article was produced in partnership with the Charleston Gazette-Mail, which is a member of the ProPublica Local Reporting Network.

Lee Martin loved her 104-acre farm in Wetzel County, West Virginia. The family raised chickens there and rode horses. The kids played in mud puddles. They all took walks in the woods.

Flat land is rare in Wetzel County, in the state’s northwestern region, and the place had a good barn, clean water and plenty of privacy.

Then, starting in about 2012, Martin had to begin sharing the farm with Stone Energy.

Stone built a new bridge across the creek and a new road right in front of the Martins’ house. The company told Martin it needed the road to reach the new natural gas wells it drilled on the new well pad for which it flattened an area she used to go to pray, bucolic hills forested with huge oak trees.

Soon, hundreds of trucks rumbled past her house every day, spewing exhaust. Martin had asked the company to build the bridge farther up the creek, away from her house, and the well pad away from the oaks.

But Martin didn’t have a say over any of this. While she owns the house and the surface land it sits on, she doesn’t own the natural gas underneath. And that gave Stone Energy not only the right to access her property, but also the right to tear down trees, build structures and send as much traffic as it deemed appropriate onto it.

“It took the very core out of me to watch this pristine farm get torn up like this,” Martin said. “It just hurt.”

For decades, coal from West Virginia helped power the nation. Now, natural gas has overtaken coal as an electricity source. Gas from West Virginia heats homes and fuels kitchen stoves in faraway cities. The industry’s growth has brought much-needed jobs and tax revenue to West Virginia, an economic bright spot for a state where many communities are still reeling from the downturn of coal, long the state’s most powerful and profitable industry.

Along the way, however, the gas rush has changed the look and feel of communities across West Virginia. It has shattered the quiet of rural life for people like Martin. Modern drilling and gas production bring traffic, noise and dust to communities that haven’t had to wrestle with large-scale industrialization. For some residents, gas operations aren’t down the road or up the hollow, but right on their farm, forest or driveway.

And today, the gas industry is far different in scale, scope and impact than could have been imagined possible when West Virginians signed over natural gas rights decades, or more than a century, ago.

“The disturbance is so much more vast,” said David McMahon, a lawyer who has spent his career trying to help residents in their battles with gas companies. “It’s beyond all anticipation.”

The number of permits approved for horizontal gas drilling in West Virginia jumped from about 400 in 2008 to more than 700 in 2014, according to state Department of Environmental Protection data. Natural gas production in West Virginia more than doubled between 2008 and 2012, then rose again, to nearly 1.4 trillion cubic feet in 2016, according to the U.S. Department of Energy.

Long-standing property rights law says mineral owners may do whatever is “reasonably necessary” to extract natural gas from the ground, whether they own the affected land above it or not.

But to meet production demand, the industry has expanded what is “reasonable” and “necessary,” residents and legal experts say. Gas producers use hydraulic fracturing, which pumps huge amounts of water and chemicals underground to loosen up gas reserves, and drill extensive horizontal holes to suck in gas from much wider areas. They bring in fleets of heavy trucks and install tanks and pipelines.

A time lapse of images taken by a motion-detecting camera captured a day’s worth of trucks going back and forth past Lee and Chuck Martin’s bedroom window on their way up to the gas well pad on their farm. Photo: Courtesy of Lee Martin

In a statement, the West Virginia Oil and Natural Gas Association said its member companies “are diligent and responsive in working with surface owners, mineral owners, and local communities” to address “concerns that may arise from time to time.” The group said its members “strive to be considerate and responsive.”

But gas companies often have the final say, at least in part because of an arcane legal system that governs mineral ownership. Critics say protection for landowners hasn’t kept pace with advances in gas drilling technology, and that it’s often far too easy for a powerful industry to game the system. The laws and interpretations were established before gas companies used rotary drills, let alone lateral well bores that can stretch for miles.

Long-standing disputes among surface landowners and gas producers might be coming to a head.

Two of West Virginia’s largest gas producers, in separate cases, are trying to cement their practices into the state’s case law. Residents are hoping the cases help them preserve their lifestyle, and maybe get a share of the profits gas is generating.

The state’s two gas lobby groups — the West Virginia Oil and Natural Gas Association and the Independent Oil and Gas Association of West Virginia — argue in a joint legal brief that, if their current practices are curtailed in any way or their reading of the law is overturned, it “will effectively eliminate future oil and gas development in West Virginia.”

Joshua Fershee, a West Virginia University law professor who is following the cases, said they could have broad ramifications, but he cautioned that the industry might be taking its legal theories too far.

“The arguments basically from the companies seem to be, if they have a lease, they can do what they want,” Fershee said. “You have a right to do a lot, but it’s not unlimited. That’s why it’s called ‘reasonable’ and ‘necessary.’”

Lee Martin talks about the impact of gas extraction on her Wetzel County farm. Video: Mayeta Clark/ProPublica

Like controversies over royalty payments, in which residents argue that drillers use various schemes to trim payments to local gas owners, much of the dispute between the gas industry and surface landowners stems from the split ownership that seems to dominate West Virginia communities where coal was once king and natural gas has taken over.

Someone might own the surface land, while someone else owns the coal, oil or gas underneath. Sometimes, people own the surface, as well as the gas below. Gas is generally produced under leases, in which gas owners or their ancestors grant a production company the right to drill, produce and sell the natural gas. Often, the leases are so old that current surface owners didn’t sign them. And they can be so complicated that, even if they did sign them, they frequently don’t know what’s in them.

When the land and mineral rights were split, leases sometimes gave the mineral owner specific rights to come onto the surface to drill or mine those minerals.

But more often than not, the right to come onto the surface — to bring in a drill, set up a well and take out the gas — was something the law calls an “implied right.” Mineral ownership must include the right to get at the minerals, the state Supreme Court ruled back in 1909, because without this right, the coal or gas would be worthless.

Graphic: Lena V. Groeger/ProPublica

In that ruling, in a famous case over whether a company could build a tram road to carry fire clay to an adjacent plant, the court also said mineral owners had the right to use as much of the surface as “fairly necessary” to extract the minerals, but that they had to show “due regard for the rights of the surface owner.”

Along the way to modern times, the phrase “fairly necessary” morphed into “reasonably necessary,” but the idea of how to balance the rights of mineral owners and surface owners never really got resolved — at least not in the context of giant, modern natural gas drilling like what’s happening in the Marcellus Shale region.

Larry Barr is a retired coal miner who had hoped to live out his life in the peace and quiet of his farm near the community of Mobley, in Wetzel County.

Larry Barr. Photo: Mayeta Clark/ProPublica

A few years ago, Barr came home to find that a natural gas company had moved in next door. The company had started to build a well pad on the adjacent land and even put some of its equipment on his property by mistake. Then came the drilling and fracking, and the bright work lights pointed toward his house.

“It was really noisy,” Barr recalled. “It vibrates the whole house. We hung blankets and stretched them out over the windows to keep out the light and some of the noise.”

Five years ago, a West Virginia University study found that “problematic” noise levels occurred frequently near natural gas operations and recommended steps be taken to address the problem, such as building a fence or planting trees to block sound — or perhaps relocating roads or other infrastructure away from homes.

That was one of a series of legislatively mandated studies that urged additional protection for residents in gas producing areas of the state. Lawmakers have never acted on the recommendations, and when Gov. Jim Justice took office in January 2017, one of the DEP’s first actions was to revoke a rule aimed at giving residents some relief from excessive noise and light.

Barr says things are a little better for him, because the drilling and fracking — the most noisy and intrusive activities in gas production — have been completed, and the wells near him are producing gas. But the sprawling well pad is still right next to his farm, and the traffic continues. Barr avoids taking out the 1957 Pontiac that his son helped him restore, because he doesn’t like dodging the gas company trucks.

“I miss the peace and quiet more than anything,” Barr said.


Gas producers now say they have a right to work on someone’s property even if they aren’t trying to access the gas underneath it. They say they have the right to do so when trying to gain the gas under adjacent or neighboring properties.

That’s what happened to Beth Crowder and David Wentz. In 1975, Crowder and Wentz bought a 300-acre farm on Brush Run, in Doddridge County, just south of Wetzel. Crowder is an artist and Wentz a woodworker. They were part of the “back to the land” movement of the time, when young people moved to the hills of West Virginia to live off the land and be left alone.

“We knew we wanted to live somewhere quiet where we wouldn’t need an awful lot of money to sustain ourselves,” Crowder later testified when she and Wentz sued EQT Corp., West Virginia’s second-largest gas producer. “We didn’t know what we wanted until we saw Brush Run. We realized that is what we wanted.”

But Crowder and Wentz only bought the surface land of the farm. (They divorced in 2005 and split the surface property, where they live in separate homes.) The minerals, in this case natural gas, were owned by the heirs of a man named Joseph L. Carr and were under a gas production lease originally signed in 1901.

Crowder and Wentz were not strangers to natural gas drilling. There were several old vertical wells on the farm. But those didn’t amount to much more than small tanks and pipes sticking out of the ground.

Then, in 2012, EQT, the new owner of the lease to Carr’s gas, notified Crowder and Wentz that it was going to drill nine modern, horizontal wells on the farm. EQT’s plan was to put in a road, the wells and a well pad on the farm, but use long horizontal drilling to suck up the gas from surrounding properties where it held leases.

Crowder and Wentz warned the company not to do so. They wrote a letter saying EQT would be trespassing. EQT ignored the couple, and it began clearing land and drilling wells in February 2013.

The work took 16 months to complete.

Later, after Crowder and Wentz sued EQT, Circuit Judge Timothy Sweeney detailed the work for the 20-acre well pad: Drilling just one of the wells involved nearly 11 million gallons of water, all of which was trucked to the site. EQT used trucks to haul in 1.8 million pounds of sand to frack the wells. By comparison, vertical wells drilled in 1962, 1990, 1991 and 1995 used a total of only 305,000 pounds of sand.

“The construction of the road was this grinding, continuous noise, and the blasting seemed to shake everything, even from a distance away,” Crowder recalled.

“They worked 24/7,” she said. “They were continually loading and rolling and crashing pipes, which sounded just really loud, and it was the intensity and quantity that I could hear very plainly from my house.

Listen to What a Hydraulic Fracturing, or Fracking, Operation Sounds Like
David Wentz captured this audio of a fracking operation at a well pad on his farm in 2014. The drilling work went on for months.

“If you had a radio on … you’d have to turn it up really loud to be able to hear it,” Crowder said. “It was hard to talk on the phone. It was a cacophony that went on for what seemed like forever.”

Even now, with construction complete, tanker trucks to handle brine, the salty water that is a byproduct of gas operations, drive up and down the road almost every day.

All of this was aimed at helping EQT gather gas from five neighboring tracts that total nearly 3,000 acres, court recordsshow. Nearly two-thirds of the gas EQT was producing came from outside the boundary of the Crowder-Wentz property.

Economically and technologically, gas production today is all about what industry officials call “laterals.” These are the horizontal holes, or well bores, that companies drill out in all directions from the vertical hole, so they can pull in gas from many properties all at once. These laterals stretch for great distances. EQT planned an average lateral of 2.2 miles this year in Appalachia. Antero Resources said its laterals have increased 30 percent since 2014 and now average more than 2.8 miles.

In February 2016, Sweeney found that EQT didn’t have the right to do any of this — that, by coming onto the Crowder-Wentz property to drill for gas from adjacent land, the gas giant had trespassed.

After a trial in September 2017, a local jury awarded Crowder and Wentz nearly $200,000 in damages.

EQT is appealing to the West Virginia Supreme Court.

In some ways, the case could present a narrow legal issue that the court could easily dispense with. Both sides generally agree that companies with gas leases have the right to do what is “reasonably necessary” to drill for and produce that gas.

Crowder and Wentz, though, say that only applies to gas that’s under the property, not to reserves under adjoining tracts. EQT disagrees. The company says its right to produce gas from the adjoining tracts gives it the right to use the Crowder-Wentz surface to do so.

David Wentz looks out from a hill on his land. Wentz sued EQT Corp. for building natural gas wells there. Photo: Raymond Thompson Jr./ProPublica

EQT declined to discuss the case beyond its court filings. But a friend-of-the-court brief filed by lawyers for the Independent Oil and Gas Association of West Virginia urges the court to take a far broader approach to protect gas companies from cases like the one filed by Crowder and Wentz.

The ruling by Sweeney, the industry lawyers say, “creates a material and substantial impediment to oil and gas development in West Virginia.” They say the ruling was “obviously wrong” and “devastating to the oil and gas industry.”

EQT lawyers made similar warnings at trial, telling jurors during closing arguments about the positive economic impact of gas. “If you want to stop all of that today, you can, but not using common sense,” EQT lawyer Brian Swiger said.

Legally, the industry believes the law in West Virginia and throughout the country makes mineral ownership “dominant” and surface land ownership “servient,” meaning secondary.

Industry officials say that horizontal drilling, using one large pad for multiple wells pulling gas from a collection of tracts, has a smaller overall footprint on communities and the environment. The alternative, they say, would be a far larger number of vertical wells that would be drilled at many more locations, creating more widespread impact.

Advocates for surface owners and residents agree, to a point. Fewer pads, even larger, centralized ones, can certainly reduce the number of landowners who have to live with wells on their property.

But that also means concentrating the effects on the surface owners unlucky enough to have their property picked for one of those pads.

Those unlucky landowners should have to agree to have large centralized pads on their land, and they should be fairly compensated, with a share of the gas profits like gas owners get through royalties, according to the West Virginia Surface Owners’ Rights Organization, which lobbies for landowners.

“Our case really isn’t such an extreme case,” said David Grubb, a former state senator and longtime activist who, with McMahon, represented Crowder and Wentz at trial. “There is so much money to be made that there’s no reason the surface owners shouldn’t be fairly compensated.”

While EQT is appealing a courtroom loss, the other major gas case that could decide how surface owners are treated is an appeal of a victory for Antero Resources, the state’s largest producer.

A group of Harrison County residents is challenging a lower court ruling that threw out their nuisance lawsuit against Antero’s operations in the Cherry Camp area, to the east of Doddridge County.

The residents say Antero should compensate them for unbearable traffic, “constant dust” that hangs in the air and settles on homes and vehicles, disruptive heavy-equipment noise and bright lights that shine into their homes day and night.

In a written statement, Antero Vice President Al Schopp said the company works hard to “listen and collaborate” with surface owners and residents in the communities where it operates.

“As a result of that, we’ve limited truck schedules, installed sound abatement, modified lighting, and rebuilt roads so they are better and safer once our work is done,” Schopp said. He said that Antero’s policy is to try to reach agreement with surface owners on the use of their land, and that longer laterals “allow us to produce more energy from a single well, which means less surface disturbance.”

The case focuses on two-dozen wells and a compressor station built on six pads in the immediate area. Hundreds of similar cases are pending, and the Supreme Court’s decision could set a precedent for all of them.

“It’s like Grand Central Station in front of my house,” said one of the residents, Deborah Andrews. Another resident, Mary Milkowski, said the dust is so bad her family stopped using their porch.

A panel of judges who handle large-scale litigation in West Virginia ruled against the residents. They appealed.

Industry lawyers say a ruling for the residents would pose an even larger threat to natural gas operations than the Crowder-Wentz verdict.

“Any other result will devastate oil and gas owners, lessees, producers, secondary suppliers, contractors, users, royalty interest owners, and the state of West Virginia and its local communities,” a joint brief filed by the West Virginia Oil and Natural Gas Association and the Independent Oil and Gas Association said.

The West Virginia Coal Association, the West Virginia Manufacturers Association, the Chamber of Commerce and a variety of other business groups filed their own brief, maintaining that the noise, dust, vibrations, lights, odor and traffic “are part and parcel to the normal drilling operations” that come with natural gas development.

“Simply put, activities that are required for mineral development cannot support a claim for nuisance because, by their very nature, they are reasonable and necessary to the exploration and extraction of minerals,” those parties said in their brief.

Pat McGinley, a WVU environmental law professor who has represented citizens in cases against the coal and gas industries for decades, said West Virginians have heard these kinds of arguments — that damage to communities is the inevitable cost of natural resource industry jobs — many times over the years. The same points were made by coal producers.

“These arguments are jobs extortion,” McGinley said. “They are trying to maximize profits and say the law doesn’t set any limits. That’s really the history of exploitation of natural resources in West Virginia.”

Oral arguments in the Antero case are set for Jan. 15. The EQT case hasn’t been scheduled yet. Both cases come at a time of turmoil and change at the court, in the wake of a spending scandal that prompted the impeachment of four justices and the resignation of a fifth, and amid controversy over the connections between at least two justices and natural gas companies.

The Martins on their farm near New Martinsville. Photo: Raymond Thompson Jr./ProPublica

Back in Wetzel County, Lee Martin and her second husband, Chuck, say some things got a little better when EQT took over the drilling from Stone Energy, following a sale of the company in 2017.

EQT at least tried to do a better job controlling the traffic, she said. And the company paid for the material for a large fence to help block some of the noise and dust from the road.

“When landowner concerns arise, EQT works diligently to address them,” EQT spokeswoman Linda Robertson said in an email. “EQT has addressed concerns raised by the Martins and continues to work with them to address their additional concerns.”

Robertson noted that Stone Energy had reached an agreement with the Martins on the use of their land and paid them a confidential amount, both sides said. Lee Martin said it wasn’t like there was much choice, given that the company had a lease for the gas.

“They showed us the design, and we had absolutely no say on where the bridge was going to be, where the road was going to go or where the pad site was going to go,” Martin said.

Life at the farm is just not the same. Too many trucks, still too much noise. No privacy. Martin worries about air pollution and water contamination from the gas industry. She doesn’t feel at home anymore.

The Martins put the farm up for sale. A young man who works in the gas industry is a potential buyer.

“We have to get out of here,” Lee Martin said. “I fell in love with it, but there have been too many changes.”

Tractor-trailers leave a natural gas well site in Doddridge County. Video: Chuck Burkhard/Drone Imageworks for ProPublica and Mayeta Clark/ProPublica

Ken Ward Jr. covers the environment, workplace safety and energy, with a focus on coal and natural gas, for the Charleston Gazette-Mail. Email him at kward@wvgazettemail.com and follow him on Twitter at @kenwardjr.

Lead video by Chuck Burkhard/Drone Imageworks for ProPublica, Al Shaw and Lucas Waldron/ProPublica

This article was produced in partnership with the Charleston Gazette-Mail, which is a member of the ProPublica Local Reporting Network.

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