Pennsylvania’s energy community should take note that the line between criminal and civil enforcement is getting harder and harder to see. State and federal prosecutors in Pennsylvania appear to be signaling that companies operating in Pennsylvania’s shale play may be subject to not only civil but criminal fines and penalties. This is significant because the criminal prosecution of energy companies in Pennsylvania for federal and state violations of environmental laws has historically been reserved for the rarest of environmental disasters. Several recent events in Pennsylvania evidence a trend toward the more frequent criminal prosecution of energy companies:
• In 2013, Pennsylvania Attorney General Kathleen Kane filed criminal charges against XTO Energy Inc., a subsidiary of ExxonMobil, for violations of the Pennsylvania Solid Waste Management Act and the Clean Streams Law. The prosecution, which is ongoing, is based on the discharge of less than 60,000 gallons of production water in Lycoming County. These charges prompted an outcry from the business community, in part because they were filed shortly after XTO Energy signed a consent agreement with the federal government resolving all federal environmental violations without the necessity of criminal charges.
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