Policy: Environment & Energy

Unraveling the mystery of ‘Gasland’ director Josh Fox’s drilling lease

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Beltway Confidential,Sean Higgins,Analysis,Energy and Environment

Is director Josh Fox  misrepresenting the premise of his anti-fracking documentary, “Gasland”?

Did he ever receive a $100,000 offer to lease his family’s land in Pennsylvania to a natural gas company for drilling, as he claims?

Did he fraudulently obtain the proposed lease that he shows in the film?

Critics of Fox claim the answers to all three questions are yes, but a Washington Examiner review of the evidence suggests that, while much remains unclear, it is possible Fox received a proposed lease to drill on his family’s land.

If that is the case, though, he appears to have taken some serious artistic license in the film and in subsequent interviews in describing the lease, who he got it from, and how he came to receive it.

Some of Fox’s claims are weak, but arguable. Others don’t bear much scrutiny and other lingering questions remain. I have repeatedly asked Fox through his publicists at Fenton Communications to clarify exactly when and how he received the lease shown in his film.

After repeated requests, I received the following response: “Josh is still being overwhelmed with requests for interviews and is trying to schedule his time to accommodate those. He feels like he’s spent as much time on this as he can.”

So, no, I guess he is not going to answer those questions.

Does this matter? In making my inquiries, Fox’s people argued strenuously with me that this was a distraction from the real issues surrounding natural gas fracking. I disagree. A documentary — especially one that is presented as investigative journalism — ought to be held to a higher standard.

Here’s what Fox claims in his film, which was released in 2010:

One day I got a letter in the mail. It was from a natural gas company. The letter told me that my land was on top of a formation called the Marcellus Shale and that I could lease my land to this company and I would receive a signing bonus of $4,750 an acre. Having 19.5 acres, that was nearly $100,000 — right there in my hand.

Fox doesn’t say when this was, but in an interview on the HBO website, which is showing his films, he says he received the letter in May 2008.

The proposed offer for the land is what, in the film’s narrative, prompts him to investigate fracking in the first place.

The claim that this story wasn’t true was first advanced in the pro-fracking documentary FrackNation. The filmmakers cite members of the North Wayne Property Owners Alliance to back up their case.

It was NWPOA, a Pennsylvania group of private landowners involved in leasing their lands for drilling, who produced the lease Fox shows in his film. The proposed lease Fox briefly shows in his film is identical to a draft version of the group’s, right down to the typos.

In an Aug. 8 interview on Aspen Public Radio, Fox called FrackNation’s claim “insane … absurd.” He then stated “we” (meaning his family) were members of the NWPOA and were involved in the group (“It was one leasing pool. We were a part of it”).

So Fox appears to at least be saying that, yes, the lease he shows in his film was from NWPOA.

When pressed during the radio interview on whether they were “partaking in those conversations” to lease their lands, Fox repeatedly — and awkwardly — requests to go off the record. They don’t, but the interviewer drops the line of inquiry.

Fox goes on to call FrackNation “not journalism (but) a willfully deceitful product.” The full Aspen Public Radio interview can be heard here. The relevant section begins around the 12-minute mark.

In an Aug. 15 statement to the Examiner, Fox said it was technically his father, not him, who was a NWPOA member, but both were involved: We became members (on) August 30, 2008, and dropped out formally in 2009.”

A subsequent email from Fox’s publicist to me said they dropped out in “February, 2009.”

On Sunday, the property owners alliance issued a statement adamantly denying that was ever the case.

“A thorough search of NWPOA records provides no evidence that Josh Fox, or his father Michael Fox, were ever members of NWPOA,” the group said.

What’s going on here? Basically the two camps are arguing over what the definition of “membership” is.

The NWPOA is saying that nobody in the Fox family was ever an active, dues-paying member of their group, which appears to be true.

What Michael Fox did do was sign up for the NWPOA’s email list on the group’s website. Fox’s publicists argue that because the emails were addressed to “members,” the family sincerely thought that was what they were — members. The publicist further notes that the emails only solicit “donations,” not membership fees.

“Josh has more than 50 emails that were sent to his father’s email account from NWPOA. Based on this extensive email correspondence between 2008 and 2009, NWPOA clearly viewed Michael Fox as a member of their organization,” a publicist said in an email.

They provided one of the emails to prove the family did receive them. It is produced here, but at the family’s request, Michael Fox’s private email address was redacted by the Examiner.

NWPOA, reacting to a posting of a screenshot of one such email on the Aspen Public Radio website, argues that still doesn’t constitute being a member.

“[I]t does not provide any evidence of membership, as it was a mass email addressed to a group, not an individual, and was shared widely throughout the community,” the group said in its Sunday statement.

As my Examiner colleague Philip Klein put it: “By that same standard (Fox uses), I am a member of the Democratic Congressional Campaign Committee.”

In any event, Fox’s publicists concede that the family’s involvement in NWPOA was otherwise minimal. In fact, being on an email list appears to be the extent of it.

But that was enough to receive the group’s proposed lease. A NWPOA board member confirmed that a July 9, 2009 draft version of its lease was sent electronically to members and nonmembers on the group’s lists.

“So, yes, nonmembers could have and most likely did receive a copy,” the NWPOA board member said.

So that’s likely how Fox received the lease: the NWPOA inadvertently emailed it to him. He then printed it out, and that’s what you see in the film.

It should be noted that NWPOA was working with an energy company called Hess to develop natural gas resources underneath members’ lands. So, had Fox been so inclined, he could have followed up and cashed in. But his claim that a legally binding offer was made for his land appears to be false. It was just a draft for show, according to NWPOA.

And that is assuming that that was how Fox received the proposed lease. It is still not clear that was the way it happened.

For one thing, Fox said in the film he received the proposed lease through snail mail (“One day I got a letter in the mail…”), not electronically.

A NWPOA boardmember told me unequivocally that the only time the group printed hard-copies of the leases was for signings with landowners, which were held beginning in July 2009.

“The hard copies were assembled at the signings. It would have been a huge undertaking and expense for us to mass mail them. Landowners received them the day of the signing where volunteers like me hand-collated them,” the boardmember said.

Fox has claimed that his family dropped out just as the signings were beginning, but his publicist told the Examiner the family dropped out of the group – meaning, apparently, unsubscribing to the group’s email list – in “February, 2009.”

That would have been months before the July email containing the lease and the actual signings. Fox, remember, has said in the HBO interview he received it in “May, 2008.” He has said he got it in 2008 in other interviews as well.

“He could have downloaded and printed it in July of 2009, but not in 2008,” the NWPOA boardmember said. “In 2008, it didn’t exist.”

If you look closely at the top of lease shown in “Gasland” – which ain’t easy; Fox scans over it very quickly – you can see that the blank areas where you are supposed to fill in a month and day for the deal are followed by a typed out “2009,” which would suggest that was the year the lease was written.

So when and how did Fox receive the lease? After repeated requests for an answer, his publicists said Tuesday he doesn’t have the time to respond.

Well, then.

There is also the question of why his father signed onto the NWPOA website in the first place. The group was all about developing their lands for drilling, after all. Neither Fox nor his father seem like recent converts to environmental causes. In fact, they are longtime progressives. It seems highly unlikely that they were ever seriously considering allowing drilling on their land.

A more likely explanation is that his father signed up on the website just to be kept aware of what the NWPOA was doing. Did they remain on the list long enough to get the July email with the proposed lease? That would make sense, although that runs contrary to what his publicist told me.

Finally, the NWPOA disputes that Fox would have gotten as much as he claimed for leasing his family’s land.

“The lease … didn’t offer anything close to the $4,750 lease signing bonus claimed in the movie or the storied $100,000 in total that has been the foundation of the Gasland theme,” the group said in its Sunday statement.

Phelim McAleer, co-director of FrackNation, says Fox is simply changing his story now.

“Josh Fox just doesn’t get to re-write history. In all of the interviews he gave, he said this came from an oil company out of the blue and that started him off on this quest. Now, under pressure, he is turning around 180 degrees to say that it came from the farmer’s group and I was a member of the farmer’s group,” McAleer said. “We never heard that before.”

If that’s so, Fox could have avoided a lot of this by simply coming clean earlier and saying that he used a little bit of artistic license in his film. The narrative set-up he uses is a separate issue from fracking itself, after all.

Instead he chose to dig in, impune the motives of the people raising questions and clam up to reporters. That’s not a strategy usually employed by people who claim to have the facts on their side.

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