By Dr. Ken Broda Bahm:
You’ve heard the expression: “Familiarity breeds contempt.” Maybe there is a relationship between the two, but in the courtroom, and in the practical task of assessing experience and attitudes during voir dire, they are two different things. First, there is the question of how much knowledge and experience jurors will have with something — lawsuits, large companies, products, etcetera. And second, there is the valence they put on it: the attitudes and opinions that are attached to those experiences. In all areas, these two factors are best measured independently, but with an eye toward how they might be connected. One area where this connection is important and also somewhat complex is in the area of oil and gas litigation. Suits based on environmental contamination, royalties, or other contractual matters play out against a backdrop of attitudes about the industry that can be quite varied.
A recent, large-scale study of public attitudes (Boudet, Zanocco, Howe & Clarke, 2018) revealed some interesting differences of opinion based on proximity to traditional oil and gas as well as fracking operations. Researchers from Oregon State University looked at close to 20,000 survey respondents, combining geographic mapping based on respondent zip code and oil or gas well location. Based on that mapping, the team evaluated the variation in public opinion responses depending on how close or how far they are from energy operations. The results, as explained in ScienceDaily, are that those who live close to fracking sites are more familiar with and more supportive of hydraulic fracturing, while those who live in proximity to areas of higher oil and gas well density are more familiar with but not more supportive of the practice. According to lead author, climate change and energy professor Hilary Boudet, “The findings indicate that people who live closer to fracking sites may perceive economic benefits, but with a higher density of the wells, they may also notice the environmental risks and societal implications of fracking.” In this post, I’ll share what I see as a couple of implications of this research for oil and gas litigation and for voir dire generally.
Experience Matters
Anyone can answer a question about how they feel on a subject, whether that subject is oil and gas companies or something else. In a highly-connected internet age, we might have set opinions on all kinds of things that we have no direct experience with. However, when that opinion is backed up by a direct connection, it is likely to be stronger, more resistant to change, and for jurors, more likely to be shared in deliberations. In an energy context, that experience means more than being a passive consumer. When people have a direct social connection to the production, refinement, and distribution, their views are likely to be different.
In the case of fracking operations, that local connection means greater support. But professor Boudet poses a ‘chicken and egg’ question, “Are wells being developed in places where they are more likely to have support? Or is support coming post-development?” The answer requires more research, she says, but, “My hunch, given case studies in specific locations, is that wells are more likely to be proposed and approved in locations predisposed to accept and even encourage energy development.” It also helps that operations are more likely to be rural, rural areas are more likely to be conservative, and conservative areas are less motivated by environmental concerns.
And the Kind of Experience Matters
Interesting, the study also found that the density of oil and gas operations was not associated with greater support. According to Boudet, ‘with a higher density of the wells, they may also notice the environmental risks and societal implications of fracking.” The researchers stop short of saying that the density actually causes opposition to fracking. After all, those living close to the operations are likely to be benefitting directly or indirectly from the economic activity. But it does seem like there is a point of overkill when it comes to experience, and dense operations will at least serve to limit the local support that would otherwise be there.
When conducting voir dire in oil and gas cases, litigators are well advised to ask specifically about the kinds of experiences people have had. When the case is in a venue that has strong financial ties to the industry, the atmosphere can often be favorable, but not necessarily. Sometimes, there is a NIMBY (‘Not in My Backyard’) attitude, but when considering the economic benefits, it could also be a YIMBY (‘Yes, in My Backyard’). But when the case is tried in a venue that is more removed from that experience, or in a more urban or liberal setting, then the views can be downright hostile. But again, not necessarily.
Best bet: Ask about experience, ask about the quality of experience, and then ask about attitudes.
Other Posts on Oil and Gas Litigation:
- Protect Your Precious Resource — Energy Industry-Friendly Jurors
- In Today’s Energy Litigation, Drill Beyond Attitudes
- Voir Dire at the Intersection of Your Case and Their Life: For Energy Litigation, that Means Gas Prices
- Test the Waters, but Don’t Assume that Bias is Forever: Deepwater Hasn’t Translated to Deep Trouble for Energy Defendants
Boudet, H. S., Zanocco, C. M., Howe, P. D., & Clarke, C. E. (2018). The Effect of Geographic Proximity to Unconventional Oil and Gas Development on Public Support for Hydraulic Fracturing. Risk Analysis. DOI: 10.1111/risa.12989