PITTSBURGH — When Pennsylvania’s attorney general filed criminal charges against a gas drilling company, some suggested it was an abuse of legal power, because the firm had settled the same case with federal authorities by paying fines.
Legal and environmental experts say Kane made a broader statement by filing criminal charges, and the company, XTO Energy, is making one too by fighting them.
“This decision unquestionably sets a bad precedent, with ramifications that may be felt far beyond this one instance alone,” said Kathryn Klaber, CEO of the Marcellus Shale Coalition, who called the criminal charges “a clear overreach in every reasonable regard.” The shale formation also extends under Ohio, West Virginia and New York.
Environmental groups agree such cases can have a broad impact.
George Jugovic, an environmental lawyer with the group Penn Future, said a high profile conviction can act “as a deterrent to others in the industry,” but added that it’s too early to say whether criminal charges were warranted in this case.
Attorney General Kathleen Kane said XTO discharged more than 50,000 gallons of toxic wastewater in the November 2010 spill, and allegedly failed to place a spill containment system under storage tanks. XTO was charged last week with five counts under the Clean Streams Law and three counts under the Solid Waste Management Act.
The state Department of Environmental Protection is also preparing a separate enforcement action, spokesman Eric Shirk wrote in an email.
In July, XTO settled with the U.S. Environmental Protection Agency over the spill, which included a $100,000 fine.
Pennsylvania has seen a surge in natural gas drilling in the past five years, leading to billions of dollars in investments, profits and royalties to landowners, but also concerns about environmental and health impacts.
XTO spokesman Alan Jeffers said Pennsylvania made a mistake by “criminalizing a small recycling spill” and suggested discussions over civil fines were more appropriate.
He said the spill happened in part because XTO began recycling the ultra-salty drilling wastewater in late 2010, more than six months before state regulators asked the industry to do so. Jeffers said XTO was doing that “to try and be a good corporate citizen.”
The criminal charges tell drillers that trying to recycle wastewater “exposes them to the risk of significant legal and financial penalties should a small release occur,” added XTO, an Exxon Mobil subsidiary based in Fort Worth, Texas.
Emily Collins, the lead attorney of the University of Pittsburgh Environmental Law Clinic, noted that Kane didn’t make a solo decision to go for criminal charges. The case was referred to her office by environmental regulators and a grand jury recommended that criminal charges be filed.
Collins said the charges send a message “that this is not a behavior that will be tolerated.”