Opinion: Legal Experts Support Attorney General’s Action Against XTO Energy
While legal spectators expected the criminal charges brought against XTO Energy to be met with disdain, the company’s ability to play the victim caught many by surprise. It’s not every day that a subsidiary of the largest company on the planet, ExxonMobil, gets to argue that they’re the David in a legal David vs. Goliath battle.
Yet when Pennsylvania Attorney General Kathleen Kane brought criminal charges against XTO on September 10 for the illegal discharges from their fracking facility in Penn Township in Lycoming County, the company waged a statewide media campaign to criticize their accusers and discredit the Attorney General’s efforts.
This included calling the charges "unprecedented, baseless, and an abuse of prosecutorial discretion." The company ran newspaper advertisements claiming the charges are unwarranted, and touting XTO’s green track record to deflect the claims of illegal pollution by the Attorney General.
But while XTO attempts to solicit sympathy from the general public, state legislators and others, many legal experts acknowledge that the Attorney General’s office is just using the legal tools to ensure the best result for the Commonwealth.
“XTO’s PR offensive rings hollow,” stated Attorney Jordan Yeager. “The Attorney General’s office is doing her job, which is to bring charges for clear violations of our laws. These companies need to understand there are real consequences for repeatedly breaking the law.”
"There is nothing unusual about a violator of environmental laws being held both civilly and criminally liable for egregious misconduct.” Said Josh Kratka, Senior Attorney at the National Environmental Law Center. “Just look at the Gulf oil spill disaster: BP and its corporate partners were assessed hefty criminal fines; they paid billions to compensate individuals harmed by the spill; and they are now being forced to pay billions more in civil penalties under the Clean Water Act."
In late 2010, a storage container owned and controlled by XTO dumped approximately 57,000 gallons of fracking wastewater containing chlorides, aluminum, barium onto the ground, contaminated a local spring. The wastewater also ran into a nearby tributary of Sugar Run, which then flows into the Susquehanna River.
Pollutants were still present for 65 days after the spill had been discovered and halted by the Pennsylvania Department of Environmental Protection (PA-DEP). The Grand Jury’s indictment noted that there was evidence at the site of the spill of previous, unreported spills of wastewater.
“What we have seen here is a pattern of impunity - companies acting with indifference to our water and our health,” stated John Rumpler, Senior Attorney for Environment America. “We need more criminal charges, not less.”
The alleged crimes by XTO fit into a larger pattern, and supporters of the AG’s actions note that this is also not the first time XTO has violated environmental laws. In 2012, PennEnvironment Research & Policy Center uncovered thousands of violations by gas drilling operators, 159 from 2009-2011 by XTO alone.
“The Attorney General’s Office deserves our thanks for holding XTO accountable for this spill, and demonstrating that no one is above the law,” said Eric Schaeffer, Executive Director, Environmental Integrity Project. “Public officials shouldn’t be intimidated by polluters – if anything we need more public officials who are willing to stand up and protect human health and the environment by enforcing the law.”
The toxic substances used in fracking fluid and wastewater have been linked to a variety of negative and serious health effects, such as cancer, endocrine disruption, and neurological and immune system problems.
“The Attorney General is doing exactly what she is supposed to do – holding a polluter accountable under our laws,” Stated Jennifer Clark, Executive Director of the Public Interest Law Center of Philadelphia. “Pennsylvanians deserve a healthy environment, and we will stand behind our officials for fight for our health and our environment.”
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