In January 2010, a farmer was awarded USD$8.5million damages by an unconventional shale gas extraction (USGE) company that had been found guilty of contaminating local waters that had accessed his farmland.
Farmer Fred Starrh of Kern County, California owns 6,000 acres of farmland that harvested pistachios, alfalfa, cotton and almonds.
Oil and Gas company Aera Energy are estimated to have dumped 2.4billion barrels of ‘produced’ fracking waste water into unlined percolation ponds on the edge of Mr Starrh’s land.
Mr Starrh noticed the environmental damage after he mixed his ground water with local aqueduct water that watered his cotton plants, before they wilted heavily. The water also killed off almond trees that he had managed to farm at 155 per acre.
Mr Starrh had considered that contaminants of the produced frack waste water could have caused the pollution. Well waters within his land were tested and were found to be positive for boron and chloride – two chemicals associated with the USGE callied out by Aera Energy, a joint venture between Shell and Exxon Mobil.
After a nine year court case, Mr Starrh was awarded $8.5million in damages by Kern County Court. However, despite winning his case against Aera Energy, Starrh appealed the court decision, stating that, as a result of the damage caused by Aera, he will need as much as $2 billion to rehabilitate his land and construct terraced ponds to properly “flush” his soil and groundwater of toxins.
Mr Starrh was in court again last year as a jury retired on 8th March 2013 to determine wether Mr Starrh be awarded further punitive damages from Aera Energy in order to fully remediate his land.
As a result of previous findings about Aera’s responsibility for the pollution, much of the case has revolved around the usefulness of Starrh’s native groundwater with regard to irrigation.
Aera’s lead attorney, Stephen Kristovich recalled testimony that the area’s groundwater has long been understood to be too salty and with too much boron to work on crops, hence the farming boom that arrived with the California Aqueduct in the 1960s.
Starrh’s attourney Ralph Wegis countered by referencing studies suggesting that at least 20 different crops can live on Starrh’s native groundwater.
In a practice he called ‘devoid of morals’, Wegis drew attention to Aera’s use of an accounting concept known as “net present value” to make, or help make, strategic decisions. By using the system, Wegis claimed Aera used net present value to determine that it was more profitable over the long run — even in the event of a jury’s award of punitive damages — to let the groundwater pollution continue into Mr Starrh’s farmland, rather than offer remediative or preventative measures.
Kristovich responded by saying that net present value has been just one of many criteria guiding Aera’s decisions, and that the others include environmental responsibility. He added, “There’s nothing wrong with using economics and using that as part of your decision-making process.”
In his rebuttal, Wegis told the jury that Aera decided it was in its best financial interest to wait rather than stop the pollution.
The jury returned 13th March 2013 to deny Mr Starrh further punitive damages, stating that Aera Energy’s contamination of the adjacent aquifer was accidental.
Mr Starrh was dissapointed in the result, “I was totally devastated, that’s all,” Starrh said. “I couldn’t accept it from a personal perspective.”
Mr Starrh and his attourney Ralph Wegis will re-appeal the decision.
1) Millar, J. (2010). Oil and Water Don’t Mix with California Agriculture. Available: http://www.hcn.org/issues/42.21/oil-and-water-dont-mix-with-california-agriculture. Last accessed 17/04/2010
2) The Bakersfield Californian. (2013). Aera-Starrh lawsuit goes to jury. Available: http://www.bakersfieldcalifornian.com/business/x837007080/Aera-Starrh-lawsuit-goes-to-jury. Last accessed 17/04/2014.
3)The Bakersfield Californian. (2013). Akern grower gets another bumper crop of disappointment. Available: http://www.bakersfieldcalifornian.com/business/oil/x738927654/Kern-grower-gets-another-bumper-crop-of-disappointment. Last accessed 17/04/2014.