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Shot Across the Bow: Pennsylvania AG's Strict Liability Criminal Prosecution of Fracking Company

September 18, 2013

By: Ronald H. Levine

The Constitution's Double Jeopardy Clause only protects against successive criminal prosecutions by the same "sovereign" (e.g., by the same state or by the federal government). Apart from the constraints of available resources and comity between sovereigns, nothing prevents a state from piling on after the feds have finished their prosecution or from prosecuting criminally after the feds have settled civilly.

The Commonwealth of Pennsylvania's filing last week of criminal charges against XTO Energy, Inc. shows how flimsy those constraints can be.

According to the Pennsylvania Attorney General's criminal complaint (click here to download), Exxon Mobil subsidiary XTO Energy was producing natural gas from two wells; the wells released toxic waste water to be stored in holding tanks; and, in November 2010, a state inspector found that the drain plugs were missing from 5 - 10 tanks which discharged about 57,000 gallons of waste water into the ground or a stream.

Three points and a moral. 

  • Point 1: XTO was charged with multiple criminal violations of the state's Clean Streams Law and Solid Waste Management Act under provisions that, unlike most crimes, arguably do not require proof of criminal intent. "Strict liability" laws like these can be used to criminalize conduct which is at most negligent.
  • Point 2: Just two months ago, in July 2013, XTO had reached a settlement with the U.S. Department of Justice and Environmental Protection Agency for essentially the same conduct, requiring it pay a penalty of $100,000 and spend a federal government-estimated $20 million on a comprehensive plan to improve waste water management practices. Click here to download the consent decree and EPA's settlement outline.
  • Point 3: Law enforcement is decentralized; agencies often have different agendas and lack coordination. The availability of strict liability environmental criminal statutes creates tremendous leverage for prosecutors.
  • Moral: If a client hopes to achieve closure in an environmental investigation, it is extremely important to strategize upfront about which agencies to invite to the negotiating table, what a "global" settlement actually would look like and how releases should be structured.

Disclaimer: this E-Flash does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this E-Flash without first seeking the advice of counsel.