a Better Bubble™
This article was produced in partnership with the Northeast Mississippi Daily Journal, formerly a member of ProPublica’s Local Reporting Network, and The Marshall Project. Sign up for Dispatches to get stories like this one as soon as they are published.
The right to an attorney is fundamental to the U.S. justice system. Yet, in a small Mississippi court off the interstate between Jackson and Memphis, that right is tenuous.
The two judges in Yalobusha County Justice Court appointed lawyers for just 20% of the five dozen felony defendants who came before them in 2022, according to a review of court records; nationally, experts estimate that lawyers are appointed to at least 80% of felony defendants at some point in the legal process because they’re deemed poor. In this court, the way these two judges decide who gets a court-appointed attorney appears to violate state rules meant to protect defendants’ rights. A few defendants have even been forced to represent themselves in key hearings.
Despite the Sixth Amendment’s guarantee that everyone gets a lawyer even if they’re too poor to pay for one, most felony defendants in this court went without any representation at all before their cases were forwarded to a grand jury, according to a review of one full year of court files by the Northeast Mississippi Daily Journal, The Marshall Project and ProPublica. (Read more about how we analyzed the court’s appointment rate in our methodology.)
“That is a huge problem,” said André de Gruy, who leads a state office that handles death penalty cases and felony appeals but has no power over local public defense. “I believe almost every one of those people would like a lawyer and is unable to afford one.”
For decades, civil rights advocates and legal reformers have complained that Mississippi is among the worst states in the country in providing attorneys for poor criminal defendants. It’s one of a handful of states where public defense is managed and funded almost entirely by local governments, and the way they do so varies greatly from county to county. Defendants in some places see appointed lawyers quickly and remain represented thereafter; elsewhere, sometimes right over the county line, defendants can wait months just to see a lawyer or can go long periods without having one at all.
The Mississippi Supreme Court, which oversees how state courts operate, has issued several rules in recent years that were intended to drive improvements. But it is up to locally elected judges to carry out those mandates, and there’s no oversight to make sure they’re doing it right.
Much like Mississippi, Texas places primary responsibility for public defense on counties. A state commission in Texas investigates the counties with low appointment rates; a felony appointment rate below 50% would raise serious questions about a county’s compliance with state law, according to current and former officials there. In Mississippi, state officials don’t even know how often judges appoint attorneys.
When people are arrested on felonies in Yalobusha County, a rural area in north Mississippi with just 12,400 residents, many have initial hearings in the county’s Justice Court. Judges there primarily handle misdemeanors. But when a felony defendant appears in their court, it falls to Judge Trent Howell and Judge Janet Caulder to deliver on the Sixth Amendment’s promise.
Caulder handles many initial hearings, where she’s required by state rules to find out whether a defendant is too poor to afford an attorney and to appoint one if so. Although Caulder informs defendants of their right to an attorney, she said she doesn’t ask if they can afford one and appoints one only if they request it.
“I don’t question them. I don’t try to force indigency on them,” she said. (Neither she nor Howell would comment on their appointment rate.)
Caulder and Howell are supposed to operate by the same rules as judges in circuit court, who handle felony cases from indictment through trial. But that doesn’t appear to be what’s happening: 15 of the cases that Howell and Caulder handled in 2022 are now in circuit court; just four of those defendants were appointed attorneys in Justice Court, but 13 were provided with lawyers when their cases moved to circuit court.
I don’t question them. I don’t try to force indigency on them.
—Judge Janet CaulderExplaining why he is sometimes reluctant to appoint an attorney, Howell told the news outlets that he has a “fiduciary duty” to spend taxpayers’ money wisely. He said he’s more likely to provide a lawyer if a defendant is in jail because a lawyer can seek a lower bond to get their client released.
On the other hand, Howell said, “If they’re arrested on a felony and they’ve made bond, I’m not too quick to pull the trigger on a public defender — particularly if they’ve made a high bond.” State rules don’t allow Howell to consider whether someone made bond when he decides if he will appoint an attorney, but he said that doing so was just “human nature.”
That’s what happened when Kayla Williams, a single mother with no stable job, came before Howell last summer on a charge of shooting and wounding her stepfather in a tussle. Williams, whose mental health issues include bipolar disorder, has been arrested three times in the past year or so after confrontations with others. In two hearings related to the shooting charge, Howell refused to appoint an attorney even though she said she couldn’t afford one, according to Williams, as well as a lawyer who observed one hearing and a reporter who observed another.
In an interview, Howell defended his decision, which he made without asking a single question about Williams’ finances: “She just didn’t strike me as an indigent person.”
“Can You Appoint Me a Lawyer? Because I Can’t Afford One.” Kayla Williams asked repeatedly for a court-appointed lawyer in Yalobusha County Justice Court, but she didn’t get one. Since last summer, she has navigated the justice system alone in her fight against a charge that carries a possible 20-year prison sentence. (Rory Doyle for ProPublica)Though Mississippi doesn’t have any guidelines for how judges should decide who is poor enough to get a court-appointed lawyer, a half-dozen legal experts who reviewed the facts of Williams’ case said she appears to qualify and that her constitutional rights have been violated.
Problems getting a court-appointed lawyer began soon after she was arrested.
On June 12, Williams’ elderly stepfather, whose name is Lawyer Crowder, was pulled over by a Yalobusha County sheriff’s deputy because he was weaving slowly down a rural road. Crowder, whose leg was bleeding, told the deputy that his stepdaughter had shot him. He had the pistol she used with him.
Around the same time, Williams called 911 and said she had shot Crowder after he hit her, according to a dispatch log. Deputies arrested her and charged her with aggravated assault against a family member, a felony with a possible prison sentence of 20 years. (While Crowder told the news outlets that Williams started the fight and that he believes she meant to shoot him, he said: “I don’t want her put away. I want her to get some help.”)
At Williams’ first court hearing a couple of days later, Caulder told her she had a right to a court-appointed lawyer, but the judge didn’t ask Williams if she could hire one herself. The state’s rules required Caulder to make a decision that day: “The determination of the right to appointed counsel, and the appointment of such counsel, is to be made no later than at the indigent defendant’s first appearance before a judge.”
Caulder did gather the facts of Williams’ finances to set conditions for her release from jail — the same sort of information that judges use when deciding whether to appoint a lawyer. According to court records, the judge knew the 22-year-old mother had no job at the time and no place of her own to live.
What I witnessed in the courthouse in Water Valley that day was not a judge carefully exploring the ability of a defendant to afford a lawyer. … What I saw was an immediate rejection of her request for assistance without any inquiry whatsoever into her ability to pay.
—Civil rights attorney Cliff JohnsonThat should have been enough to prompt Caulder to appoint a lawyer, said de Gruy, the head of the state public defense office. Caulder, however, said she believes she complied with court rules because she told Williams of her rights. She always does that, she said, and she’s always willing to consider a request for a lawyer.
Caulder shouldn’t force defendants to ask for a lawyer, said William Waller, a retired chief justice of the Mississippi Supreme Court who helped write the state’s court rules. That “is absolutely not right,” he said, because many defendants don’t know how or when to ask. “The judge makes the inquiry” to learn whether a defendant can afford an attorney, he said.
Williams’ friends and family paid a bail bond company to post a $7,500 bond to get her out of jail. Her next opportunity to get a lawyer came a month later, when she walked into Howell’s courtroom in Water Valley for a hearing.
Cliff Johnson, a civil rights attorney and law professor, happened to be in the courtroom that July day doing pro bono work for an animal shelter. Williams asked for a lawyer more than once, Johnson said. Howell said he wasn’t going to appoint one at that time.
“What I witnessed in the courthouse in Water Valley that day was not a judge carefully exploring the ability of a defendant to afford a lawyer,” Johnson said. “What I saw was an immediate rejection of her request for assistance without any inquiry whatsoever into her ability to pay.”
In an interview, Howell defended his decision in that hearing and a subsequent one: “I think that what I did at this particular point for this lady was within my discretion and proper.” He suggested that hearings in his court aren’t as critical to the outcome of a case as those in circuit court. However, the state’s rules say poor defendants must have a lawyer throughout the process.
Howell did tell Williams she could ask for a preliminary hearing, an optional hearing that defendants can request to force a prosecutor to show that there was probable cause for an arrest.
The courthouse in Water Valley, Mississippi (Rory Doyle for ProPublica)That’s how Williams found herself the following month in a crowded conference room that served as a courtroom, sitting at a table with the deputy who arrested her and the prosecutor handling her case. The prosecutor asked if she had an attorney.
“No, because the judge has not provided me with one,” Williams replied. Howell didn’t respond. After a brief exchange, the judge said he was ready to proceed with the hearing.
His decision to hold that hearing for a defendant who didn’t have a lawyer was particularly egregious, according to law professors, civil rights attorneys and a legal consultant. The U.S. Supreme Court requires that appointed counsel be present with a poor defendant at key hearings, called critical stages, at which the defendant’s rights could be impaired. Experts agree that a preliminary hearing in Mississippi is considered a critical stage.
“That is clearly a violation” of her rights, said David Carroll, who has studied Mississippi’s defense system as executive director of the Sixth Amendment Center, a Boston-based nonprofit research center.
Without an attorney, Williams handled the hearing herself. She stammered as she cross-examined the deputy, who acknowledged that the case hinged largely on the stepfather’s account. “I’m nervous,” she said.
After the deputy testified, Howell told Williams there was no need for her to testify. Anything she said could be used against her later, he said, and he was prepared to rule that the case could move forward.
“I want to tell my side of the story,” Williams said.
“You’re going to testify over my recommendation,” the judge responded.
Williams did testify, stressing her belief that the gun was fired by accident. Testifying was a risky move, one that a defense lawyer likely would have prevented, said Jonathan Rapping, who runs the national nonprofit public defender training organization Gideon’s Promise. Williams’ hearing, he said, was “a textbook example of why you need a lawyer.”
After Howell ordered that Williams’ case could proceed to a grand jury, she made a direct appeal: “Can you appoint me a lawyer? Because I can’t afford one.”
Howell said that if she were eventually indicted, a judge in circuit court would decide whether she would be eligible for appointed counsel. But that might not happen, the judge said, until the next grand jury was convened in December, four months away.
Justice Court Judge Trent Howell signed this order forwarding Williams’ case for consideration by a grand jury. A handwritten note on the order says the court determined that Williams wasn’t indigent, but Howell didn’t ask Williams any questions to learn why she said she couldn’t afford an attorney. (Obtained by the Northeast Mississippi Daily Journal, The Marshall Project and ProPublica. Highlighted by ProPublica.) The Rules Are Mandatory, but No One Enforces ThemMonths later, as Williams waited for an update on that case, she had a different experience in another county. She had been arrested on two felony counts of arson after she acknowledged lighting two small fires in a homeless shelter she was staying in, according to a police report. Within 48 hours, she had a lawyer in Tupelo Municipal Court, which, unlike Yalobusha County Justice Court, employs a full-time public defender.
She had seen for herself what criminal justice reformers have long argued is a key problem with Mississippi’s locally controlled public defense system: While some local courts swiftly deliver lawyers to poor criminal defendants, others delay and deny representation for months without any oversight by the state. Multiple commissions and task forces have tried to address shortcomings in the public defense system over the years, but the Legislature hasn’t acted. So the state Supreme Court has wielded its authority over the courts below it.
Though its rules are mandatory, Mississippi’s Supreme Court relies on judges across the state to implement them. Those local judges don’t have a good track record, the Daily Journal, The Marshall Project and ProPublica have found.
In 2017, the Supreme Court put all Mississippi courts under the same rules. Among them: Judges in each court would have to write down how they provide attorneys for poor defendants. The Supreme Court would review those policies and approve them.
Six years later, the first of the state’s 23 circuit courts complied. Since then, just two more have filed plans.
A similar lack of compliance emerged last summer, when the court took action to address poor defendants being left without legal representation between their initial court hearings and an indictment, a period that often lasts months and sometimes years.
We don’t hear from many places other than Mississippi of judges simply ignoring or deferring the question of whether the right to counsel applies.
—Lisa M. Wayne, executive director of the National Association of Criminal Defense LawyersA revised rule aims to eliminate that gap in representation — which critics have called the “dead zone” — by preventing a lawyer from leaving a case unless another has already taken over. On the eve of last summer’s deadline to comply, many local officials told the news outlets that they were unaware of the rule or contended they didn’t need to change their current practice.
But it’s not the Supreme Court’s role to go out and make sure judges follow these rules, a justice told legislators last fall. Although an individual defendant can petition to have their case dismissed if they have been denied a lawyer, the only way, outside of a lawsuit, to hold judges accountable for their actions is to file a complaint with a state judicial commission. The commission hasn’t publicly sanctioned any judges for denial of counsel in at least a decade.
In 2014, Mississippi’s Scott County was sued for practices similar to those in Yalobusha’s Justice Court. The county settled the suit in 2017 and, without admitting fault, agreed to hire a chief public defender and ensure that when people were arrested on a felony charge, they were provided with the paperwork to request a lawyer.
“We don’t hear from many places other than Mississippi of judges simply ignoring or deferring the question of whether the right to counsel applies,” said Lisa M. Wayne, executive director of the National Association of Criminal Defense Lawyers.
Johnson, the civil rights law professor, was among those who argued for the Supreme Court’s recent move to address the dead zone. He has argued that there’s important defense work to be done as defendants wait to be indicted, a view that puts him at odds with many judges and lawyers in Mississippi. The Supreme Court’s rule change went into effect in July; about a week later, he saw Howell deny Williams’ requests for an attorney.
“My fear is that this happens far more often than we know,” Johnson said. “I was reminded quickly that change comes hard in Mississippi.”
Howell, however, said he wants to go back to what he called “the old way,” to a time when the Supreme Court hadn’t spelled out so many procedural steps to follow before an indictment.
His view on the change that Johnson argued for, meant to ensure that a poor defendant always has a lawyer from arrest to trial? “Hopefully,” he said, “the Supreme Court will come down and modify that rule.”
Sometimes I get overwhelmed, but most of the time I’m just numb. … I’m tired. I’m only 22, but I feel like I’m 55.
—Kayla WilliamsWilliams hasn’t gotten any updates on the case involving her stepfather since she saw Howell last summer. After repeatedly calling Yalobusha County officials, she recently learned that she hadn’t been indicted by the December grand jury there. It’s unclear when, or even if, she will be. Prosecutors in Mississippi face no deadline to seek an indictment, and the grand jury in that part of Yalobusha County typically meets three times a year. By the time the most recent grand jury met this month, she was in jail on the latest charges and couldn’t call anyone to check on last summer’s case.
“Sometimes I get overwhelmed, but most of the time I’m just numb,” Williams said. ”I’m tired. I’m only 22, but I feel like I’m 55.” If she had an attorney, Williams said, “I would understand more and have more trust” in the legal process.
But after she appeared in Tupelo Municipal Court on the arson charges, she said, “I actually had a lawyer this time.” In all the months she had been speaking to the news outlets, it was the first time she felt that the court system had worked the way she thought it was supposed to. In an interview from jail, she said that the public defender had explained what would happen in court and argued for a lower bond, which was eventually set at $30,000. “He was really informative,” she said, “and made things seem a little bit better and like I wasn’t by myself.”
How We Reported This StoryThe state of Mississippi does not collect data on how often judges provide an attorney to criminal defendants who are too poor to afford their own. Many counties don’t know that information either, even though each controls its own public defense system.
A task force that met from 2015 to 2018 found that it could not fully evaluate public defense in the state without knowing how often attorneys were appointed to indigent defendants. State officials surveyed circuit clerks, asking them to estimate their appointment rates. Circuit court clerks in 53 of 82 counties responded; the vast majority, including Yalobusha’s, estimated appointment rates of 75% or more in circuit court.
However, people arrested on felony charges make their first court appearance in lower courts, where judges are required to evaluate their ability to pay for an attorney and appoint one if needed. These courts handle only hearings that precede an indictment, after which cases are transferred to circuit court. In Yalobusha County, people arrested for a felony can have a first appearance in Water Valley Municipal Court or the county Justice Court.
To understand how frequently judges in Yalobusha County’s Justice Court appointed lawyers for defendants, a reporter traveled to the court clerk’s office and pulled the files for every felony case that was opened in 2022. We chose cases from 2022 because it was the most recent full calendar year and every case had had at least one opportunity to be presented to a grand jury for a possible indictment. We also reviewed files in another clerk’s office and billing records for attorneys appointed in Justice Court. We found 63 cases in which court records indicated that defendants appeared before a judge in Justice Court.
For each case, a reporter logged various facts, including the defendant’s name, the charge, hearing dates, the judge or judges that heard the case, and whether the file included an indigency affidavit, a judge’s order appointing an attorney or a letter from a lawyer stating that they had been retained in the case.
We counted the number of defendants who were provided counsel in Justice Court. (Defendants who appeared in court multiple times were counted once, even if they appeared on unrelated charges.) This number was used to calculate an appointment rate for 2022: 20%. In the majority of cases — 61% — the defendant had no attorney at all. (In a couple of cases, they waived their right to an attorney.)
In a few cases, notes in case files say that defendants told a judge they had hired an attorney or intended to, but there are no records showing they did so. We counted those defendants as privately represented, based on the case notes.
We excluded two cases from our analysis because we could not determine whether the lawyer listed had been appointed or hired.
Our reporter also checked Mississippi’s online court database to see how many of the 2022 cases had been moved to circuit court and how many of those defendants had been appointed lawyers there.
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In the 165 years since the first American oil well struck black gold, the industry has punched millions of holes in the earth, seeking profits gushing from the ground. Now, those wells are running dry, and a generational bill is coming due.
Until wells are properly plugged, many leak oil and brine onto farmland and into waterways and emit toxic and explosive gasses, rendering redevelopment impossible. A noxious lake inundates West Texas ranchland, oil bubbles into a downtown Los Angeles apartment building and gas seeps into the yards of suburban Ohio homes.
But the impact is felt everywhere, as many belch methane, the second-largest contributor to climate change, into the atmosphere.
There are more than 2 million unplugged oil and gas wells that will need to be cleaned up, and the current production boom and windfall profits for industry giants have obscured the bill’s imminent arrival. More than 90% of the country’s unplugged wells either produce little oil and gas or are already dormant.
By law, companies are responsible for plugging and cleaning up wells. Oil drillers set aside funds called bonds, similar to the security deposit on a rental property, that are refunded once they decommission their wells or, if they walk away without doing that work, are taken by the government to cover the cost.
But an analysis by ProPublica and Capital & Main has found that the money set aside for this cleanup work in the 15 states accounting for nearly all the nation’s oil and gas production covers less than 2% of the projected cost. That shortfall puts taxpayers at risk of picking up the rest of the massive tab to avoid the environmental, economic and public health consequences of aging oil fields.
Are you a journalist, academic or someone else interested in localizing, analyzing or otherwise working with the bonding and cleanup cost data referenced in this story? Reach out directly at mark.olalde@propublica.org to discuss the data or to request access to it.
The estimated cost to plug and remediate those wells if cleanup is left to the government is $151.3 billion, according to the states’ own data. But the actual price tag will almost certainly be higher — perhaps tens of billions of dollars more — because some states don’t fully account for the cost of cleaning up pollution. In addition, regulators have yet to locate many wells whose owners have already walked away without plugging them, known as orphan wells, which states predict will number at least in the hundreds of thousands.
“The data presents an urgent call to action for state regulators and the Department of the Interior to swiftly and effectively update bond amounts,” said Shannon Anderson, who tracks the oil industry’s cleanup as organizing director of the Powder River Basin Resource Council, a nonprofit that advocates for Wyoming communities. Anderson and nine other experts, including petroleum engineers and financial analysts, reviewed ProPublica and Capital & Main’s findings, which were built using records from 30 state and federal agencies.
“We have allowed companies intentionally to do this,” said Megan Milliken Biven, who reviewed the data and is a former program analyst for the Bureau of Ocean Energy Management, a federal regulator of offshore oil rigs, and founder of True Transition, a nonprofit that advocates for oil field workers. “It is the inevitable consequence of an entire regulatory program that is more red carpet than red tape.”
Sources: State oil regulators and the Department of the Interior, via public records requests by ProPublica and Capital & Main; Enverus.Regulatory agencies in several states maintain that they have adequate tools to protect taxpayers, such as the authority to require companies to post larger bonds as their wells stop producing. Other states are working to reform their bonding systems. Industry representatives, meanwhile, say they have done their part by paying fees on oil production that help fund states’ well-plugging efforts.
“Our industry is taking action every day to address the permanent closure of historic oil and natural gas wells and the remediation of historic well sites in accordance with applicable federal and state laws,” Holly Hopkins, a vice president of the American Petroleum Institute, the industry’s major trade group, said in a statement.
A graveyard of rusting wells rising from once-picturesque sand dunes near Artesia, New Mexico, tells a more complicated story.
Around the corroding skeletons of pump jacks, the ground is stained black from spills. Leaking hydrogen sulfide, which reeks of rotten eggs, has turned the air toxic, making each breath burn. At the base of one salt-caked well, a sign indicates who is responsible for the mess. Barely legible beneath splattered oil, it reads “Remnant Oil Operating.”
The story of Remnant is the story of the American oil industry.
The industry’s household names — Chevron, ExxonMobil and others — often reap the biggest profits from any given oil field. As the booms fade and production falls, wells are sold to a string of ever-smaller companies, many of which let the infrastructure fall into disrepair while violations and leaks skyrocket. The number of idled wells soars too, as companies warehouse them to avoid costly cleanup. By this point, regulators’ hands are tied because the bonds states demand to use as leverage are so small. Seeing little incentive to plug wells and get their tiny bonds back, companies slip into bankruptcy court, where executives are protected from their environmental liabilities. When the dust settles, the government is on the hook for the now-orphaned wells.
The practice is so tried-and-true that researchers and activists call it “the playbook.”
As the company’s name implies, Remnant gathered the industry’s dregs into a portfolio of several hundred wells. Drilled decades ago by larger companies, their most productive days were behind them. When Remnant arrived in 2015, it briefly boosted production, but regulatory violations, bad bets and the oil fields’ age caught up with the company. Within four years, Remnant filed for bankruptcy protection, and its leadership shuffled assets and liabilities between companies the executives managed.
What’s left of Remnant is 401 wells scattered across the New Mexico countryside. While a few are still pumping, more are idle and potentially already orphaned, joining thousands of other wells that are sitting unplugged and in need of cleanup across the wider region. Regulators here in the Permian Basin, the world’s most productive oil field, must contend with Remnant and other undercapitalized companies like it that could add even more wells to the list of orphans.
Sources: New Mexico Oil Conservation Division; Railroad Commission of Texas. (Jason Kao and Lucas Waldron/ProPublica)Remnant representatives did not respond to ProPublica and Capital & Main’s requests for comment.
Over their lifespans, the wells that remain in the hands of Remnant and a related company generated roughly $2 billion in revenue, when adjusted for inflation, enough to cover the cost of their cleanup many times over. This is according to estimates produced from state production data by ProPublica, Capital & Main and Texas-based petroleum reservoir engineer Dwayne Purvis.
The New Mexico State Land Office sent letters in 2023 demanding that cleanup begin. Remnant’s executives have yet to comply.
Seeking FortunesAs wildcatters scoured Texas for oil in the 1920s, one hopeful investor christened their well in honor of Saint Rita of Cascia — the patron saint of impossible causes — asking for a miracle. The gusher that followed ignited a drilling frenzy in the Permian Basin, from West Texas to southeastern New Mexico.
By the late 1940s, the Square Lake Pool had come alive among New Mexico’s sand dunes. Anadarko Production Company — now part of the $50 billion Oxy Petroleum — took over the oil field in the 1960s and increased production. To keep the oil and gas flowing, Anadarko turned to unconventional methods: fracturing underground rock, injecting wells with gelled water and frac sand and waterflooding. The chemical treatments continued into the 1980s, but production steadily declined as the wells aged and underground oil reservoirs were depleted.
In 1995, Xeric Oil & Gas Corp. acquired much of the field. Two years later, Xeric transferred the wells to GP II Energy Inc. In the two decades that followed, the wells ping-ponged to CBS Operating Corp., Boaz Energy LLC, Memorial Production Operating LLC, Marker Oil and finally, in 2017, to Remnant.
Remnant was the brainchild of Everett Willard Gray II, Robert Stitzel and Marquis Reed Gilmore Jr., oilmen out of Midland, Texas, the heart of the Permian. They set up shop north of downtown, their office surrounded by those of other oil companies, a politician and banks in a six-story office building rising above a parking lot full of white pickup trucks.
Initial investments in the wells succeeded in reversing the declining production and squeezed out tens of millions of dollars of additional revenue, estimates based on state data show.
But Gray, Stitzel and Gilmore — who did not respond to requests for comment — reduced the workforce that serviced the wells and limited repairs to cut costs. Regulators noted 146 infractions in the years Remnant and a related company operated the wells, according to New Mexico Oil Conservation Division data. Among them: leaks and spills, degraded wells, a lack of infrastructure to contain spills and “contaminated material on location.” The records show Remnant only brought two of the infractions into compliance, but it continued pumping.
Peer-reviewed studies have found that wells emit methane, a greenhouse gas that in the short term has 85 times the warming impact of carbon dioxide, at a higher rate as they move down the oil industry food chain, from majors to thinly capitalized operators like Remnant.
Transferring wells between companies has historically been approved automatically in New Mexico, as long as the company receiving the wells is in compliance with inactive-well rules and has a bond, according to Oil Conservation Division acting Director Dylan Fuge.
As oil fields age and are passed between companies, it’s also common to let wells stand inactive temporarily to wait out a price dip or complete maintenance. But idling is often a prelude to a well being orphaned, and after a few months of inactivity, the chance that a well never produces again rises significantly.
Across the country, more wells are idle than producing, according to an analysis of data from energy software company Enverus.
Despite a New Mexico law that requires companies to plug, restart or get approval to temporarily idle wells that haven’t produced for 15 months, ProPublica and Capital & Main identified more than 3,100 oil and gas wells in the state — 4% of the state’s portfolio — that sit unproductive and out of compliance, a step away from being orphaned.
A bill introduced in this year’s legislative session — written by the Oil Conservation Division, the industry and certain environmental groups — would’ve reformed New Mexico’s Oil and Gas Act, giving the agency more authority to intervene to stop transfers that pose a risk of leaving wells orphaned. The bill died on the floor of the state’s House of Representatives.
Any reforms would likely come too late for the oil fields in Remnant’s hands, where numerous wells are already idle.
Hesitant to RegulateOn a brisk November day, ProPublica and Capital & Main reporters examined a Remnant well that, like the company, was listed in state records as inactive. Oil coated the wellhead, rust crept across the pump jack and a faded sign bore Remnant’s coat of arms — a bird of prey with outstretched wings perched on a shield.
Suddenly, the well creaked to life, producing for a dead company. A haze appeared. Methane, typically invisible to the naked eye, leaked in such a high concentration that the air shimmered. A handheld gas detector aimed at the wellhead screeched a warning — the amount of escaping methane had made the air explosive.
That day’s production and emissions never appeared in state records.
Methane leaks from a Remnant well listed as inactive in state records. The gas is invisible to the naked eye but detectable as a black plume using specialized infrared camera technology. (FLIR footage courtesy of Charlie Barrett/Earthworks)ProPublica and Capital & Main reporters visited dozens of Remnant wells and tank batteries — facilities used for oil storage and early stages of processing — scattered across this rural stretch of New Mexico. Multiple sites emitted explosive levels of methane, with one leak clocked at 10 times the concentration at which the gas can explode.
Several wells belched sour hydrogen sulfide at concentrations that maxed out the gas detector, registering levels three times as high as what is “immediately dangerous to life or health,” according to the National Institute for Occupational Safety and Health.
Oil Conservation Division inspectors hadn’t visited some of the wells since 2017, according to agency records.
Two hundred fifty miles northwest of these oil fields, New Mexico’s Democrat-controlled government in Santa Fe has for years made big promises on climate change and the environment. But there has been little action to regulate the industry in ways that could hit the bottom line of the state’s petroleum companies and oilmen like Remnant’s Gray, Stitzel and Gilmore. The taxes and royalties the industry pays, which the state has tied to public education funding, typically account for more than a quarter of the state’s general fund, earning it a nickname — “golden goose.”
This close relationship to the industry cuts across parties. When Republicans were in power, the head of the New Mexico Environment Department left to run the New Mexico Oil and Gas Association. Now, the state’s Democratic leaders take major fossil fuel donations, publicly assert that they will not target the industry with aggressive regulations, and block reform.
State Rep. Joanne Ferrary, a Las Cruces Democrat who has worked on oil legislation, had a simple explanation for what dooms these efforts: money. She pointed to the industry’s spending on lobbying as well as the threat of losing taxes and royalties. “We do get a lot of money from them,” she said, “but those are our resources and they’re not doing us any favors.”
Consider the state’s Office of Natural Resources Trustee, which pursues polluters for financial settlements to clean up the environment. The agency has secured millions of dollars from mines, an Army munitions depot and a wood treatment facility. But it completed just one action for petroleum pollution in decades. Even then, the office only had jurisdiction to pursue a small settlement because a tanker truck flipped on an icy road, spilling refined gasoline and diesel into the Cimarron River.
Legislators attempted to expand the office’s authority in 2009, 2010, 2011, 2013 and again last year. All those efforts failed.
Ferrary, who sponsored the 2023 bill to grant the trustee more authority over petroleum and certain cancer-causing substances, said the oil and gas industry has “such strong lobbying that we have to negotiate whatever we are trying to do. It always seems to get negotiated down.”
In a recent four-year period, the state’s oil and gas industry spent $11.5 million to influence policy, in addition to employing dozens of lobbyists, according to research from two government accountability nonprofits.
“Lawmakers and regulators appropriately balance the need to hold industry accountable while also ensuring oil and gas operations remain viable,” Frederick Bermudez, the vice president of communications for the New Mexico Oil and Gas Association, said in a statement. He added that Remnant is not a member of the trade group and that “bad actors in the industry should be held accountable.”
Regulators argue they’re underfunded and understaffed, while environmental activists point out agencies are sometimes tasked with simultaneously overseeing and advancing the industry. New Mexico records, for example, show that the Oil Conservation Division inspects roughly half the state’s wells annually, but many go years without a visit. Meanwhile, it quickly greenlights requests to drill new wells, generally granting approval for more than 90% of permits within 10 days.
The state does even worse at preparing for the industry’s decline. The division secured about 7% of the tens of millions of dollars of additional bonds it requested from companies in violation of idle well rules, according to a ProPublica and Capital & Main analysis of the agency’s data. (The division said some companies no longer need to hand over the requested bonds because they have since left their wells as orphans for the state to plug. The state has already labeled more than 1,700 wells as orphans.)
The Oil Conservation Division has “limited bandwidth” and has to triage enforcement, Fuge, its acting director, said, adding that a mix of enforcement actions and business decisions lead companies to plug many of their own wells. “We don’t prioritize inactive well actions when the chute’s too deep because we want to devote the resources that we have to other enforcement initiatives.”
Oil wells cover the landscape near Loco Hills, New Mexico, which sits in the Permian Basin, a major oil- and gas-producing area in West Texas and southeastern New Mexico. (Jim WEST/REPORT DIGITAL-REA/Redux) “Ill-Prepared for This Last Phase of Life”By the time regulators took notice of Remnant’s myriad violations and idle wells, it was too late.
Core to oil regulators’ power are bonds, the financial assurances oil companies must set aside to guarantee that wells are plugged. Proper cleanup is expensive, so when bonding levels are low, companies have no incentive to finish cleanup and retrieve their bonds.
To decommission a typical orphan well in New Mexico costs the state about $167,000, according to documents the Oil Conservation Division submitted to the U.S. Department of the Interior. That translates to an $11.8 billion shortfall between the potential future cleanup costs and bonds that companies set aside with the agency, ProPublica and Capital & Main found.
“The state of New Mexico is short,” Fuge said. “We don’t hold sufficient bonding to cover likely plugging liabilities.”
Fuge suggested the shortfall might be smaller, deferring to an environmental group’s lower projection. Elsewhere in state government, the State Land Office in 2022 estimated the gap between bonds and cleanup costs was $8.1 billion.
Based on the per-well cleanup costs Fuge’s agency submitted to the federal government, the wells belonging to Remnant and a related company could cost the state $67 million if they are orphaned. The companies have only set aside about $1.5 million in bonds across three state and federal agencies.
Under current New Mexico rules, companies only need to put up a single bond worth a maximum of $250,000 — no matter how many wells they have — with the Oil Conservation Division. The failed reform bill would’ve increased that cap to $10 million. The division can request additional bonds to cover the increased risk from idle wells, but when it asked Remnant and a related company for about $3 million, the operators put up less than a tenth of that and kept pumping oil.
Weak bonding rules and an unwillingness to take on the industry have created similar shortfalls across the nation.
The Pennsylvania General Assembly in the 1990s, for example, forced the state’s oil regulators to hand back money that oil companies had set aside to plug wells drilled prior to 1985, which numbered in the tens of thousands of wells.
Oklahoma allows oil companies that prove they’re worth at least $50,000 — about the price of one of the ubiquitous pickup trucks cruising the oil fields — to set aside no money to plug their wells.
And Kansas gives companies, no matter how many wells they own, the option of paying a flat $100 annual fee instead of setting aside a bond, as long as they have not committed recent infractions. Seven out of eight companies in the state take this route, leaving an average of less than $13 in bonds for each of the state’s 150,000 unplugged wells. The state’s estimated cleanup costs — which experts said may be low — would mean the state faces about a $1 billion shortfall between the bonds and plugging costs.
“Regulations that may have worked well enough in the past have left the public and the industry ill-prepared for this last phase of life for millions of old wells,” Purvis, the petroleum reservoir engineer, said. “Left unchanged, current regulations and practices will continue to accrue liabilities that will ultimately fall on taxpayers.”
All told, oil drillers have set aside only $2.7 billion in bonds with the 15 states that account for nearly all the country’s oil and gas production and $204 million with the Bureau of Land Management, the main federal oil regulator. The expected cost to plug and clean up wells in those states is $151.3 billion.
ProPublica and Capital & Main obtained and analyzed more than a thousand pages of states’ applications for funding to plug orphan wells as part of the Biden administration’s Infrastructure Investment and Jobs Act. The documents reveal for the first time states’ own estimates of the cleanup costs in a way that allows states to be compared.
“You can give us probably the entire infrastructure act funding — $4.7 billion — and we'd probably spend that in Pennsylvania,” Kurt Klapkowski, head of the commonwealth’s Office of Oil and Gas Management, told a national meeting of regulators in October.
Some states acknowledged that accumulated costs from unplugged wells are high but said they could be mitigated by additional money in the states’ orphan well funds — which often contain several million dollars and were not included in this study — and by tools meant to ensure companies, rather than taxpayers, plug the wells. For example, Wyoming significantly increases the bonds required of operators when wells go idle.
“Wyoming is fully bonded to be protective of the wells” under state oversight, Tom Kropatsch, oil and gas supervisor of the Wyoming Oil and Gas Conservation Commission, said in an email, pointing to the fact that most wells that have been plugged in Wyoming were plugged by the industry, not the state. “The bonds we hold are adjusted on an ongoing basis as our agency conducts an annual bond review of each operator.”
North Dakota regulators, with the luxury of a still highly profitable industry, have resources to more rigorously police oil. Lynn Helms, director of the North Dakota Department of Mineral Resources, said this includes enough inspectors to observe well plugging, determine whether idle wells require additional bonding and scrutinize proposed well transfers to smaller operators, which are “the biggest risk.”
Helms said the state aims to cover as much as 10% of future plugging costs through bonds and orphan well funds, although his department is still working to reach that level.
Both North Dakota and Wyoming hold more bonds and face lower impending liability than New Mexico.
“When the bottom goes out of this oil and gas production economy, who’s going to be left holding that bag?” New Mexico Commissioner of Public Lands Stephanie Garcia Richard asked.
Wind turbines have sprung up around oil wells near Odessa, Texas. (Lalo de Almeida/Folhapress/Panos/Redux) “I Got Big-Time Screwed Over”In July 2019, less than four years after Gray, Stitzel and Gilmore began buying up wells, Remnant was in bad shape. Its wells were deteriorating and production was declining. The owners had made a costly gamble on an oil sale and the company’s bank demanded payment on a debt, according to court testimony from Gray.
So Remnant employed a tactic that has saved the oil industry billions — its owners filed for Chapter 11 bankruptcy protection with a court in Texas.
The Bankruptcy Code is meant to protect jobs, creditors and the economy by allowing companies to stabilize during rough patches. But bankruptcy court is a key step in the industry’s playbook, as it has become an oil field escape hatch, effectively allowing companies with aging wells to sell off valuable assets while orphaning wells in need of immediate cleanup. Companies can also stop the clock on many enforcement actions.
Between 2015 and 2021, 256 oil and gas producers entered bankruptcy protection across the country, carrying with them about $175 billion in debt, according to Haynes and Boone, a law firm that produced the most comprehensive research on oil field bankruptcies. (Haynes and Boone is representing ProPublica in several Texas lawsuits.)
Court records show the bankrupt Remnant companies owed millions of dollars to hundreds of creditors — oil field service companies, the New Mexico Taxation and Revenue Department, counties, banks, trucking companies and a local air conditioning and heating company.
But in the year leading up to the bankruptcies, court filings show, Remnant paid hundreds of thousands of dollars in consulting fees to companies belonging to at least two of the men who ran the company and cut numerous paychecks to a daughter, son, cousin and daughter-in-law of various executives.
In April 2020, unsecured creditors who were owed millions of dollars had the case converted to Chapter 7, meaning a trustee would take over, liquidate the company’s assets and pay back creditors where possible.
Debts relating to cleaning up the environment or repaying labor “get pretty low priority” in bankruptcy cases, explained Josh Macey, a law professor at the University of Chicago who studies bankruptcy and reviewed ProPublica and Capital & Main’s findings. To Macey, one solution to unfavorable bankruptcy rules is bonds, as they’re protected even in bankruptcy.
“Bonding requirements have not proven to be sufficient,” he said, “but if they were, it would make bankruptcy irrelevant.”
Arturo Carrasco was one of Remnant’s unsecured creditors, meaning a long list of debts would have to be settled before he saw any money. Carrasco, now retired, owned Art’s Hot Oil Services, an oil field maintenance company with a handful of drivers and trucks out of Lovington, New Mexico. By the time Remnant hired Carrasco’s company to work on its wells, most were “already depleted,” he said.
Remnant only paid him a little at a time and never the full amount it owed, Carrasco said.
Carrasco filed claims for more than $165,000 in the bankruptcy, according to court records, and that didn’t include another $50,000 in unpaid expenses like fuel, he said. Concerned his company might go under, Carrasco worked “double time” to make up for the lost income. With no expectation of recovering money via the bankruptcy, he briefly fantasized about throwing a chain around Remnant’s pump jacks and pulling them down.
“I got big-time screwed over,” he said.
Graveyards of WellsThree months after the judge ordered that Remnant liquidate, a buyer called Acacia Resources LLC wired $402,000 to the trustee, completing the purchase of Remnant’s assets.
The new company was run by familiar names — Stitzel and Gilmore, Remnant’s former chief operating officer and president, state records show. Business filings and his LinkedIn profile suggest Gray left the venture to launch a helium and natural gas company.
“All they did was file bankruptcy. Then they went to the bank and bought it at a cheaper price, and they’re still producing,” Carrasco said. “How can that be allowed?”
Fuge, the New Mexico oil regulator, said the companies are the “subject of prime enforcement attention” but did not comment further. And a Bureau of Land Management spokesperson said Remnant had no outstanding violations and the agency was not preparing to forfeit the company’s bonds.
The details of Acacia’s operations are murky. The on-the-ground situation doesn’t always match New Mexico’s data, while state records don’t align with federal records.
But Remnant’s business practices are similar to those of any number of undercapitalized drillers holding portfolios of old wells. So the State Land Office began a campaign to bring such operators into compliance to protect the state from shouldering the burden of even more orphan wells.
Buried amid pages of infractions in Remnant’s files, agency staff noted that satellite imagery appeared to show a spill at a Remnant well in the Drickey Queen Sand Unit. In November, the agency wrote to Gray, Stitzel and others, demanding they begin plugging wells in the field.
Jaclyn McLean, an attorney representing Acacia, responded with a proposal — Acacia would plug a few wells per year and pay back some money it owed for pumping oil on expired leases if the state would renew those leases and reduce the amount the company owed. With Gilmore, who was a manager of both Remnant and Acacia, copied on the letter, McLean blamed prior management’s “severe inaction” and promised that “the new management team seeks to maintain professionalism, integrity, and authenticity.” (McLean did not respond to a request for comment.)
“Tell your client to get serious,” the agency responded.
Still unplugged, Remnant’s wells in the Drickey Queen Sand Unit stood eerily silent during a recent site visit, the bellowing and bleating of cattle the only sound as they grazed among the apparent orphans. At one of the pump jacks, which had not drawn oil in more than eight years, pieces of metal had corroded and fallen off. Lines used for collecting oil in preparation for sale lay in the dirt. They connected to nothing.
MethodologyTo investigate what leads to oil and gas wells being orphaned, ProPublica and Capital & Main filed more than 55 public records requests with state and federal agencies and toured oil fields in New Mexico, Texas and California. We interviewed dozens of petroleum engineers, researchers, community members and government officials, including the leadership of oil agencies in Louisiana, North Dakota, Pennsylvania and elsewhere.
To determine the magnitude of the shortfall between cleanup costs and bonds, we needed to answer several questions: how many wells are unplugged, how much money have companies set aside in bonds and how much does it cost to plug and remediate a well. The analysis focused on the top 15 oil- and gas-producing states because, according to U.S. Energy Information Administration data, they accounted for 99% of the country’s output in recent years. Those states are Texas, Pennsylvania, New Mexico, Oklahoma, North Dakota, Louisiana, Colorado, West Virginia, Ohio, Wyoming, Alaska, California, Arkansas, Utah and Kansas.
With petroleum reservoir engineer Dwayne Purvis, we analyzed data from energy software company Enverus to determine the number of unplugged wells in each state, conservatively defining them as either clearly active or in some stage of idling. We checked these figures against previous estimates, such as what states self-reported to the Interstate Oil and Gas Compact Commission.
To calculate plugging costs, we used the estimates that states reported to the U.S. Department of the Interior in their notices of intent to apply for Infrastructure Investment and Jobs Act funds. We checked these figures against states’ next round of applications, Native American tribes’ applications and hundreds of orphan well plugging contracts from across the country. The agreements showed the detailed mechanics of the work, such as where cement plugs were placed, how surface infrastructure was removed and what post-remediation environmental monitoring was completed. Plugging costs varied widely depending on the depth, condition and geography of the well, but costs ballooned to the high six figures or even the seven-figure range when projects faced unanticipated obstacles, such as cannonballs having been dropped into a well as an improvised plug, wells igniting and the need to tear up city streets to plug some wells.
For bonding figures, we obtained the 15 states’ datasets of all active bonds tied to oil and gas well plugging, remediation and reclamation. We relied on figures reported by the Government Accountability Office for the value of bonds held by the Bureau of Land Management. We requested, but did not receive, that agency’s data, and the Bureau of Indian Affairs didn’t answer questions about bonds on tribal land. We didn’t include other jurisdictions’ bonds, as those are much smaller. (For example, New Mexico’s State Land Office requires bonds but only holds $20,000 for Remnant’s wells.)
To check our methodology, we gave a 10-member panel of petroleum engineers, law professors and former regulators an opportunity to comment on the findings. These experts have worked or currently work with the California Geologic Energy Management Division, the Bureau of Ocean Energy Management, Texas Christian University, the Carbon Tracker Initiative and other research organizations. They widely accepted the final methodology. The lead oil regulatory agency from all 15 states also had a chance to review the findings. Some states’ data showed slightly different numbers of unplugged wells than Enverus’ data, but we used the Enverus data because it is standardized and not all states provided well counts. Regulators also emphasized that bonds are an insurance policy not meant to cover 100% of the cost, that states won’t have to plug every well because the industry will plug many and that other agencies also hold bonds.
When estimating the total revenue generated by Remnant’s and Acacia’s wells, we used New Mexico Oil Conservation Division data to tell us how much oil and gas each well produced. Because some production wasn’t assigned a year, we worked with Purvis to model a likely production decline curve. We multiplied that by each year’s oil and gas prices, mainly found in Energy Information Administration data, and adjusted that for inflation, using Bureau of Labor Statistics figures.
Finally, our emissions testing fieldwork was completed using a handheld Bascom-Turner Gas Explorer Detector. We consulted Amy Townsend-Small, a professor of environmental sciences at the University of Cincinnati, to formulate the testing plan. We checked the readings with the manufacturer, whose employees said they had never seen their equipment register such high levels. They gathered in an office to call our reporter and ask if he was all right (he was because he wore an acid gas and organic vapor respirator around the wells).
Graphics by Jason Kao. Mollie Simon contributed research, and Agnel Philip contributed data reporting.
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