Intent Makes Big Difference
Pennsylvania Attorney General Kathleen Kane filed criminal charges against XTO Energy, an Exxon Mobil subsidiary, after an accidental spill from natural gas drilling produced wastewater. The incident occurred in Lycoming County, Pa., in November 2010, when approximately 50,000 gallons of produced water spilled from a temporary storage tank that was in use during a water-recycling operation.
The Pennsylvania attorney general filed charges under the Environmental Crimes Section, which was enacted in the 1980s to prosecute intentional crimes against the environment, such as dumping or burying hazardous, infectious or other types of waste, abandoning drums of waste, falsifying documents relating to the transportation or identification of waste, or recklessly causing water pollution. All of the actions have one thing in common: They are intentional and deliberate actions that harm the environment.
XTO was in no way trying to harm the environment. The November 2010 incident was an accidental release of produced water that was to be recycled. The attorney general announced that criminal charges will be filed even though no one possesses evidence that points to any commission of an intentional or deliberate act. XTO was voluntarily recycling water to preserve the environment. Current photographs of the affected area show no long-term damage.
If attorneys general or other legal bodies have the authority to file criminal charges against companies that may have industrial accidents, then we see a dangerous precedent. Companies that voluntarily report accidents, which is the required under the West Virginia statute, could be volunteering information that could lead to criminal actions.
XTO and other companies that practice good corporate citizenship pay millions in taxes, invest in higher education, medical care, environmental research, and arts and civic organizations may be reluctant to do so if they sense the state is ready to expand its oversight to ridiculous levels.
Pennsylvania Chamber of Commerce President Gene Barr has said: “This sends a chilling message to all businesses looking to locate in Pennsylvania that they could be held criminally liable in the event of an unintentional spill by a contractor that resulted in no injury to humans or wildlife and had no lasting impacts on the environment.”
Even though XTO in July 2013 settled civil charges by the EPA for this same spill, paid a fine and implemented an improved plan for water management, the attorney general chose to file criminal charges. Charges such as these should be filed only when a government agency identifies an intent to commit a crime. That is not the case here. When the Attorney General’s Office was questioned about that very issue, it responded by saying that it didn’t need to show “intent” to pursue a criminal charge against XTO.
No industry will be immune from this type of action if this action proceeds. Officers of the court, public officials with hidden agendas or those who succumb to outside pressures should not have the power to charge companies without proof of deliberate intent.
DeMarco is executive director of the West Virginia Oil and Natural Gas Association.