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.
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.’”
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.
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.
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.
“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.
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.
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.”
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 [email protected] 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.