EPA finally catches a Fracking polluter in the Act, levies Largest ever Civil Penalties

(By Tina Casey)

The company is front and center in the nation’s natural gas fracking boom and it just got hit with one of the largest ever civil penalties for violating Section 404 of the Clean Water Act.
US EPA Nails Fracker With Record Fine (via Clean Technica)

The woes just keep piling up for Chesapeake Energy. The company is front and center in the nation’s natural gas fracking boom and it just got hit with one of the largest ever civil penalties for violating Section 404 of the Clean Water Act. The penalty…

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12 Responses

  1. Jean,Ohio

    @DeanBaker13 Civil Penalties are rewards to big business for crimes & they repeat the crimes-We must start ‘Jailing’ CEO’s 4 crimes

  2. As a former EPA enforcement attorney (13 years, Carter through Reagan), I have to smile just a little at the breathless announcement of “record civil penalties.” I don’t have access to the consent agreement, but as one who was involved in the negotiation of many of these, I would bet that there are terms that anyone serious or hopeful about the deterrent effect of sanctions EPA dares to impose would have to give a rueful shake of the head at. Not sure about current law, but these used to be tax-deductible, and “mitigation” by “restoring” watercourses and wetlands and such is a shell game of the first order.

    Deals like this are nice career builders for the people involved, you get to hang a little (very) scalp on your belt, and put a copy of the memo of payment of the money part in your little file. I am a little surprised, given what I hear of “enforcement” by the current EPA and DOJ, that this went as far as it did, and I expect this is maybe a little pressure-release valve like the one on your water heater, that keeps the tank from exploding but still on the boil.

    What really did have an effect on corporate behavior was when under the Carter administration and with a very different DOJ, EPA staff was finally allowed to start using the criminal sanction powers that earlier, less captive Congresses had written into the Clean Air and Clean Water Acts, the Resource Conservation and Recovery Act, FIFRA and statutes requiring reporting of toxics releases. Silk-stocking lawyers were amazed that we DARED to refer and prosecute criminal actions against their “The business of America is business” executive-suite clients, even holding corporate chiefs liable criminally for failure to meet their very much individual obligations to abide by for laws against “externalization profit-taking” and requiring self-reporting of discharges and emissions under permit requirements and absolute prohibitions. The high-priced legal talent quickly adapted, hiring former prosecutors to teach them how to “mitigate” liability by negotiating plea deals and playing political strings, and (occasionally) having to hire “experts” in massaging the federal corrections system to let their clients do soft time or get “community service” or probation rather than the other thing.

    But for a heady while, we line troops in the regional offices got to see stuffed suits with profit motives in place of consciences sometimes actually do “perp walks,” and we had some satisfaction that the measurable rate of “deviance,” by these charming souls in their power ties, and the corporate structures for which they set the “moral” tone. The people on the neoliberal side have managed to mostly scotch the rules and regulations, and the institutional energies that the tree-huggers that used to staff a lot of EPA enforcement once so vigorously embodied.

    Here’s a Powerpoint, link to ohiochemistry.org, with some salient stuff to remark on, like look at how little change there has been in actual criminal enforcement, Bush to Obama, very little of which is against corporate officers, whose personal fear of prosecution is much of the reason for compliance (with little incentive to just “do the right thing” rather than grab the short-term profit, and huge career and payday disincentives.) The crowing about penny ante penalties ought to be measured against the many HUGE estimates of human health and environmental harm caused by the behaviors that criminal laws are supposed to deter, and the civil penalties are puny a “cost of doing business” joke, laden with “outs” and avoidances and with releases from liability for some serious malefactors, although as noted, they are great career-builders for the staff, especially those on the way toward the cash-out door to working for the Dark Side.

    And there is this official pronouncement of text undoubtedly drafted by his staff and vetted all over the place, by Earle Devaney, who has worn several Administration hats over the years, with interesting distinctions — link to en.wikipedia.org :

    “This Conference is premised, in part, on a shared recognition that the impact of environmental law on society is largely dependent upon effective enforcement of such law. This, in turn, requires the availability of sanctions that not only recover the economic benefit gained by violating the law, but also serve as a credible deterrent to noncompliance. One of the hard lessons learned in environmental law enforcement is that individuals and companies confronted with only administrative or civil judicial fines often find it advantageous to continue to violate the law and merely absorb such penalties as a cost of doing business. What few individuals making compliance decisions are willing to risk, however, is the prospect of a criminal conviction and imprisonment.”

    There’s more, for anyone interested, at link to inece.org

    Bear in mind that this document was from a 1994 international conference, which included some pretty good sharing of ideas and inspirations and also some good opportunities to network and figure out how to beat the system. See what’s included in the TransPacific Partnership deal and its Atlantic cognate (as far as leaks have let us see what the suits are up to…) We are once again hearing that “dilution is the solution to pollution,” e.g. Fukushima, and that the rest of us have to pay the corporatists not to load us with toxins — the “right” to extract and pollute belongs to Citizens United citizens, not the rest of us…

    “One of the largest civil penalties.” Big whoop, but would it not be nice if that was just a start, assuming that there is any “rule of law” left?

    • In addition: If a 3.2 million dollar civil penalty is “one of the largest ever…,” then that just goes to show you how ineffective civil penalties are at deterring pollution. Considering the size of the businesses involved, that’s pretty much petty cash. In a lot of cases, the penalties, if you do get caught, are far less severe than the cost of doing things right. It just becomes an actuarial problem of the cost of doing business.

        • Anyone wanting to fact-check Joe’s cocky assertion need only use “why is the US coal industry declining?” as a search term. One slightly dated entry: “U.S. coal industry would face decline even without Obama’s policies”

          link to washingtonpost.com

          Then go see what Lisa Jackson has been up to in her career, and one might also look at the full range of our President’s Men’s other appointments too, and maybe start a running tally of “policies” that have been “good for the planet” and “good for the average person,” versus the other thing…

          Maybe Lisa has a stack of penny-on-the-kilodollar “settlements” of environmental enforcement actions nailed to the wall of her den (aptly chosen locus) as well…

        • Seems the jury is still out on Ms. Jackson, but to say “Obama’s EPA rocks” is either sarcasm or nonsense. Well, one other option: you’re just not paying attention.

    • Some support for the enthusiasm?

      How about a little context?

      In Jackson’s apparent favor, there’s this:

      link to climatesciencewatch.org Says she does not much care for some pretty significant aspects of Obama’s “environmental program,” like the Keystone XL corruption and smog rules (and she gets credit for probably accelerating the closing of coal-fired power plants, though environmental activists bringing suit for permit violations and of course the cheap “fracked” gas that is going to what, make the Empire energy-independent, have a whole lot more…

      “EPA:
      ‘There are significant geographic regions we can no longer cover’ — agency’s top cop” (this is about the effects of sequestration among other stuff) link to eenews.net

      “EPA Deems Fracking Safe as States Debate New Drilling Laws” says Lisa jackson in July 2012 — link to news.yahoo.com , and

      link to epw.senate.gov

      What she says about her tenure after 3 of her 4 years: “BEFORE THE COMMITTEE ON APPROPRIATIONS, SUBCOMMITTEE ON INTERIOR, ENVIRONMENT, AND RELATED AGENCIES
      UNITED STATES SENATE
      MARCH 16, 2011

      link to google.com

      The folks I worked with at EPA who were still there when Jackson ran the show have mixed views of her from an actual environmental protection standpoint.

  3. $9 million dollars? This represents, what, a weeks profits? This is ‘cost of doing business’ penalties not ‘don’t do this anymore’ penalties.

  4. These observations from the inside are fine indeed. I especially liked the stream of consciousness riff from a few days ago. It all rings true. Don’t tell anyone, but you write very well. I don’t know what you’re doing today but I hope you’re keeping busy.

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