Drilling suit lawyer tried
 to stop harm beforehand

A high-profile New York City attorney who helped Battlement Mesa residents sue over proposed oil and gas developments said he’s not surprised a judge dismissed the legal action, but it was important to have pursued it.

“We knew going in that it was a long shot, but we were hoping that the court would have the insight and foresight to make new law. That’s really what we were asking,” said Marc Bern, a senior partner in the firm Napoli Bern Ripka Shkolnik LLP.

A Denver District Court judge recently dismissed the lawsuit filed by Battlement Mesa residents concerned about alleged impacts of current and future oil and gas development by Antero Resources. The judge ruled in part that the suit improperly made claims based on hypothetical injuries that have yet to occur because drilling hasn’t yet taken place in the community.

The plaintiffs had hoped to have the suit certified for class-action status. They had enlisted the help of Bern’s firm, which negotiated a class-action lawsuit settlement for more than $800 million for emergency responders to the World Trade Center attack of 2001.

While the Battlement Mesa suit focused partly on possible health effects from fumes from an Antero well near the community in 2010, its chief concern was some 200 wells Antero has proposed drilling inside Battlement Mesa.

Said Bern, “We were hoping that the court would see the wisdom of stopping harm before it occurs, but the court decided basically in accordance with the prevailing law and dismissed the case.”

He said under prevailing law nationally, there must be harm before there’s cause for legal action, which he called unfortunate.

“It’s most harmful in environmental cases where you have a good history that harm is going to occur. It’s really a shame that particularly in environment cases the law is not changing to prevent damage before it occurs,” he said.

He said appealing the case’s dismissal might not be the best approach, and it’s more likely that if Antero drills in the community and harm occurs, another suit will be filed then.

Unfortunately, he said, he thinks companies are more inclined to drill more cheaply and risk problems rather than to take steps to ensure they’re drilling safely.

David Ludlam, executive director of the West Slope Colorado Oil and Gas Association, disagreed. He said companies in Colorado have adapted to difficult and expensive state oil and gas development rules, have done voluntary baseline groundwater sampling before drilling, and have taken other steps such as reducing air pollution and truck traffic. Companies also have committed $800,000 toward a new study in Garfield County focused on air pollution near oil and gas operations.

“We actually have made great steps to improving our operations and paying a lot of attention to human health and public safety,” he said.


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