Taking Environmental Protection Agency Down Constitutes Bragging Rights in Texas

Bloomberg News

Texas Judge’s Campaign Says He’s Taken on the EPA

By Mark Drajem on May 24, 2012

A Texas state judge is promoting his recent decisions favoring a gas driller in its dispute with a local landowner as part of his election campaign, a move some legal scholars say may violate state judicial ethics rules.
With aspects of the case still pending in his courtroom, Judge Trey Loftin sent fliers to voters saying he forced the U.S. Environmental Protection Agency to back down.
Loftin, who is campaigning to keep his state judgeship in a county west of Dallas, also sent out materials with the image of talk show host Rush Limbaugh, who credited the judge’s ruling in favor of driller Range Resources Corp. (RRC) (RRC), based in Fort Worth, Texas, for getting the EPA to reverse course.
“The problem of having judges run for office is that sometimes they cross a line in trying to get elected,” James Alfini, a professor of law at South Texas College of Law in Houston and co-author of a book on judicial ethics, said in an interview. “In this case, I think he crossed a line.”
Texas is one of 39 states that select trial court judges by election, and one of eight that do so through partisan elections, according to the American Bar Association. Others chose judges through appointment.
The Texas code of judicial conduct prohibits judges from commenting on pending or impending cases “in a manner which suggests to a reasonable person the judge’s probable decision.”Alfini said that the State Commission on Judicial Conduct should conduct an inquiry.

Commission Reaction

The commission’s executive director, Seana Willing, said it doesn’t disclose whether a complaint has been filed against a judge. Unless a complaint is filed and examined, there is no way to know if a particular campaign statement violates the state code, she said in an e-mail.
Loftin, who is running to retain the post to which he was appointed on the 43rd district court in Parker County, has ruled in favor of Range three times in a legal dispute with landowner Steven Lipsky and consultant Alisa Rich. Lipsky sued Range, accusing it of contaminating his well water. Range, in a countersuit, alleged that Rich and Lipsky conspired to defame the company by getting the Environmental Protection Agency to intervene in the case, which prompted media coverage.
While one decision in the case is under appeal, parts of the case continue to be argued in Loftin’s courtroom. Last week, Loftin ruled that blogger Sharon Wilson must turn over e-mails Range demanded.
“The EPA, using falsified evidence provided by a liberal activist environmental consultant, accused and fined a local gas driller of contaminating wells,” according to a campaign flier for Loftin’s campaign. President Barack “Obama’s EPA backed down only after Judge Trey Loftin ruled that the evidence was‘deceptive.’”

In Public Record

A message left at Loftin’s office was returned by Craig Murphy, who runs the Austin-based political consulting firm Murphy Turner Associates. Murphy, who said he is a campaign spokesman for Loftin, declined to elaborate on the text in the brochures, or even say whether they referred to this case.
“We were real careful in the mailings to make sure everything in there was appropriate,” he said. “What we’ve done is strictly reprint things that are in the public record.”
Range, Rich and Lipsky aren’t named in either of the two fliers provided to Bloomberg. The news stories and Limbaugh commentaries they cite are about the case.
Loftin’s campaign Facebook page includes a reprinted“morning update” by Limbaugh from April 9, in which he says the judge’s decision in favor of Range in the Lipsky case forced the EPA to backtrack. Loftin’s campaign mailer also credits a story in the Fort-Worth Star Telegram about his decision in the Range case.

Recusal Could be Sought

Even without specific references, the mailer may cause a reasonable person to think Loftin was biased in the case, said Keith Swisher, a professor of law at the Phoenix School of Law and expert on judicial ethics.
“The fact that a specific name wasn’t used doesn’t provide” an out, Swisher said in an interview. The materials could also be used by Lipsky or Rich’s lawyers to get Loftin removed from the case, he said.
Lipsky didn’t return a telephone message seeking comment.
“It would be disturbing to think that there was any association between this mailer and myself,” Rich said in an interview. Rich’s lawyer, George Carlton, said he is reviewing the documents.
“I’ve never run across anything like this before,” he said in an interview. “We’re deciding what, if anything, we need to do.”

Loftin’s Opponent

“I don’t think a judge should ever comment about a case pending in his court,” Craig Towson, Loftin’s opponent in the Republican primary on May 29, said in an interview. “One could feel slighted if you have a judge commenting on the case.”
The case in Weatherford, Texas, has become fodder for a nationwide fight between activists increasingly worried about the effects of hydraulic fracturing for natural gas on human health, and drillers complaining about increasing scrutiny from federal regulators.
It is one of at least three examples nationwide in which the EPA initially linked water contamination in a well to fracking, in which millions of gallons of water are mixed with sand and chemicals and shot deep underground to free gas trapped in rock. The agency has since backed off in each case, settling with Range, agreeing to more testing in another case and concluding that homes in a third area are largely free of contamination.
Lipsky initially sued Range in early 2011, after the EPA had issued an administrative order saying Range was responsible for contaminating his water with dangerous levels of methane and benzene, which can cause cancer. Range countersued, saying Lipsky and Rich conspired to persuade the EPA to intervene.
Loftin ruled that Lipsky had to take his original complaint to the state Railroad Commission, not to the court.

SLAPP Law

Lawyers for Rich and Lipsky tried to get Loftin to throw out Range’s countersuit, arguing that it violates a Texas law against so-called Strategic Lawsuits Against Public Participation, or SLAPPs. Loftin rejected that argument on Feb. 16, and the case was appealed to the Texas Second Court of Appeals in Fort Worth.
A month after Loftin made that decision, the EPA settled its dispute with Range. In his campaign materials, Loftin takes credit for EPA’s about face.
“Judge Loftin’s decision regarding deceptive actions by environmental extremists made the EPA re-evaluate its national policy,” his campaign said in a flier.
The case in Texas state court is Lipsky v. Durant, 11-cv-0798, 43rd District Court of Texas, Parker County (Weatherford, Texas).
To contact the reporter on this story: Mark Drajem in Washington at mdrajem@bloomberg.net
To contact the editor responsible for this story: Jon Morgan at jmorgan97@bloomberg.net