Michael E. Haefner, president and CEO of Atmos EnergyEXPAND
Michael E. Haefner, president and CEO of Atmos Energy
dallascityhall.com

In Search for Truth on Gas Explosions, Maybe Criminal Law Is Best Hope

Just a thought. I’m not a lawyer, certainly not a prosecutor. But after watching the extremely unsatisfying hearing before the Dallas City Council on Wednesday on this winter’s natural gas home explosion crisis, I wonder why authorities are not at least looking at the recent indictment in Wyandotte County, Kansas, of former Schlitterbahn Waterpark executive Tyler Austin Miles on 20 felony charges, including involuntary manslaughter.

Let me be clear about what I am not saying. I am not saying that somebody at Atmos is guilty of manslaughter in the home explosion crisis. But I am wondering if local prosecutors could not look at the criminal law in general and at the involuntary manslaughter statues in particular as a potential avenue toward a degree of public protection that we seem unable to achieve by other means.

Meanwhile, I’ll tell you what I’m looking at. I’m looking at a map generated by Atmos (see below) of areas of the city with new, safer plastic gas pipes versus areas with older, more dangerous steel pipes. Highland Park, the wealthiest, whitest, most exclusive realm of the city, is almost pure brown, meaning it has all new, safer plastic gas pipes.

Four miles northeast of there, in the area north of Bachmann Lake where 12-year-old Michellita Rogers was blown up and died Feb. 22, the map is almost all red. That means that before the rolling home explosion crisis in which Michellita died, that working-class and Hispanic area had the kind of older steel pipes that tend to get rusty, become pitted and develop leaks.

We had the bad pipes on my block in East Dallas until November of 2016, and those pipes did more than just leak gas into the dirt. We had water shooting all the way through our gas meters from the alley, going across yards through our supply lines and into our houses, where the water was repeatedly dousing gas appliances.

Atmos repeatedly told us the water was the fault of our supply lines from the meters to our houses. We’re an activist white middle-class neighborhood with a pit bull City Council member, Philip Kingston, who finally got Atmos off that story. When Atmos relented, the company sent big crews and equipment that dug up our alleys and cross streets for blocks up and down our neighborhood, quickly replacing everything with new plastic pipes.

Yes, the entire natural gas infrastructure in our city, like all of our infrastructure, is aged and obsolete. But there are big differences between the publicly owned infrastructure and private infrastructure like the gas lines.

For the last decade, investors and Wall Street money-fiddlers have been pocketing huge profits and fees flipping the local gas monopoly back and forth like tiddlywinks. During that time, it was their responsibility, legally and morally, to hold back enough cash from their money games to maintain the gas pipes and keep us safe.

And, no, they probably couldn’t afford to do it all at once without going out of business. Priorities had to be set. Decisions had to be made. Somebody went to the head of the line. Somebody else went the back. The question is how those decisions were made.

The public has been looking at maps of Dallas all year long showing the harsh outline of racial segregation and economic disparity in our city. One map shows unemployment. The next shows access to transportation. Others show school success rates, economic disparity, home ownership.

After a while, a certain grim awareness dawns. These are all the same map. They show the same profile, the same hand at work. White people with money come first. People of color with no money come last.

Rich white people in Highland Park don’t get blown up by their own gas lines. Ever. Mexican-American children in Northwest Dallas do.

Did the hard-working people of Northwest Dallas do something to make their own gas lines less safe? Before the explosions, did they ever have even the slightest awareness of any of this, let alone choice?

This might be different if Atmos came to it with cleaner hands. A candid statement of the problem would help. Instead, Atmos brought to the City Council a hodgepodge of rationalizations for the explosion crisis, which it called the “differential earth movement theory,” based on geology, soil conditions and weather.

The fault, according to Atmos, lay not with the company but in a confluence of screw-ups by the Creator. Were I a more religious person, I might have expected a gigantic lightning bolt to suddenly vaporize the entire line-up of Atmos officers addressing the council that day.

In fact, it was City Council member Scott Griggs who provided the bolt, eviscerating the company’s explanations of the explosion crisis in a few incisive questions. If soil and weather, even geology itself, conspired to play hob with the gas pipes, Griggs demanded, why had no other pipes or underground structures shown any sign of rupture or displacement?

The home where 12-year-old Michellita Rogers died on Feb. 22.
The home where 12-year-old Michellita Rogers died on Feb. 22.
Dallas County

Putting his questions to Atmos CEO Michael E. Haefner, Griggs asked, “Under this theory, the differential earth movement theory, it’s limited to this particular region of Dallas at this particular time?”

“Yes,” Haefner said.

“Then I would ask you, at this particular region of Dallas at this particular time, why didn’t water mains break?”

“I don’t know the answer to that,” Haefner said.

“At this particular place in Dallas at this particular time, this impacts pipes, with all these criteria, why didn’t sewer lines break?”

“I don’t have that information,” Haefner said, “and I don’t have the answer to that.”

“At this particular time and this particular place in Dallas,” Griggs asked, “why didn’t pools crumble?

“With this theory,” Griggs said, “why are the only underground conduits affected yours? Why aren’t underground water conduits affected like sewer lines, ones going to pools, sprinkler systems? Does your theory explain that?”

Haefner said it did not.

“That’s my concern about this theory,” Griggs said. “It sounds like speculation. It’s shakier than even its name, ‘the differential earth movement theory.’”

The other dismaying reality brought up during the hearing was that we citizens of Texas are utterly and completely without public protection in this area from our state government. The Texas Railroad Commission is supposed to regulate gas distribution, but the oil industry captured and field-dressed that agency, a lurid legacy of the Gilded Age, the day it was born in 1890. Far from protecting us, the railroad commission is more often our most fiendish foe.

That leaves us the courts. Where civil suits are concerned, the Creator Herself could come up with lightning bolts far more easily than she could scrape together the cash it would take her to sue Atmos Energy and scratch the surface. But the criminal courts are another matter. We’ve already paid for that.

The indictment in the Schlitterbahn case is interesting in this context because it takes a charge not normally seen in the area of consumer protection, involuntary manslaughter, and brings it forward into the realm of business. The 47-page indictment, born of two years of research and discovery by prosecutors, presents instance after instance in which prosecutors claim that the company’s former chief of operations, Miles, made decisions ignoring and flouting the safety of consumers, even when Miles knew, the prosecutors claim, that a new ride he was helping to create might kill someone.

It did. It decapitated a 10-year-old boy.

But the relevance of the Schlitterbahn indictment to the Atmos home explosion crisis probably has less to do with deliberate actions and decisions made by Miles than with what Miles certainly never intended to see happen — the death of the child. He is not charged with murder, as some early stories erroneously reported.

Murder is deliberate. Another crime not charged in the Schlitterbahn case, voluntary manslaughter, is less than fully voluntary, more in the line of a so-called act of passion, a killing done on purpose but in some kind of diminished mental and moral capacity. But involuntary manslaughter is a death brought about by a person who did not intend to cause the death of another.

An involuntary manslaughter is a death caused by a person who behaved in ways or made decisions he should have known could be fatally dangerous. That distinction — should have known — would bring us right back to the map of pipe replacements and the big brown area in Highland Park.

It’s possible a good, tough, rigorous criminal investigation and discovery process would reveal Atmos has pursued a plan of pipe replacement based on entirely legitimate criteria having nothing to do with larger patterns of unfair social discrimination besetting the community. In that case, I would invite everybody to have a good, hearty laugh at my expense.

But what if the facts go the other way? What if the same callous, unexamined bias that has driven so many other forms of unjust discrimination in our city also lies at the heart of this company’s decisions about pipe replacement? Then those decisions killed that little girl.

In the Atmos hearing at City Council last week, council member Omar Narvaez, in whose district the crisis occurred, sounded the final dramatic coda: “A little girl died,” he said softly. “At the end of the day, a little girl died.”

Doesn’t that death deserve an answer? Especially in the absence of other reasonable answers and without any other recourse, do we not all deserve an answer?

These decisions about pipes carrying a volatile explosive substance beneath our homes are decisions about life and death. We should all know that. Everyone should know that. We all have an interest in knowing that these decisions are made justly and responsibly, with equal respect for all human lives. Maybe the criminal courts are where we should look for the answers we need.

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