Maryland's AG Proposes New Legal Standard... "Guilty Until Proven Innocent"

from the Baltimore Sun

Attorney General Brian E. Frosh entered the fight over hydraulic fracturing in Maryland on Wednesday, urging state lawmakers to pass a bill with liability standards so tough that critics and some supporters consider it a de facto fracking ban.

In the absence of "gold standard" regulations to monitor the industry, Frosh said, Maryland would need to find another way to protect residents and the environment.

"If we're not going to have those regulations adopted, then it makes sense to have strict liability," Frosh said. "I'm not sure it's a de facto ban. But it poses to drillers: if this really is safe, go ahead and do it."

Legislation moving through a Senate committee would set some of the toughest legal standards in the country for drillers. If anyone near a gas well became sick, the drillers would carry the burden of proving their innocence.

The legislation also would require that drillers carry at least $5 million in insurance coverage. It would provide very limited protection for trade secrets and impose triple damages for negligence. Business representatives said the cumulative effect would be to outlaw fracking in the state.

"The standards detailed in the bill are so stringent that it is safe to assume no company would be interested in doing business here," Don Fry, President and CEO of the Greater Baltimore Committee, wrote in testimony to lawmakers.

Frosh, who until this year was chairman of a key Senate committee, pushed for fracking protections as a lawmaker. Wednesday marked the first time he threw his weight behind legislation as attorney general.

Environmentalists told lawmakers that the policy was the best alternative to an outright ban, which has been proposed for several years but never made it out of committee.

The lead sponsor of the measure said the bill was not a ban but a legal framework to hold drilling companies responsible for health and environmental consequences.

"If companies are loathe to come to a state because they will be held responsible for damage done, that's good to know before they come," said Sen. Bobby Zirkin, the Baltimore County Democrat who wrote the bill.

Unions and trade associations said the legislation would be too onerous, particularly at a time when natural gas prices are falling and potential drillers in Maryland would have to compete against those in about two dozen states with rules that are less strict.

The Washington, Maryland, Delaware Service Station and Automotive Repair Association told lawmakers the bill "would absolutely stop drilling anywhere in Maryland forever. … This law would make owners of drilling operations guilty when accused."

Companies have drilled for natural gas in the United States for more than half a century. But techniques developed within the past decade allow drilling first down and then horizontally, enabling drillers to tap reserves once thought too costly to extract.

The new techniques have led to a boom in extraction from the Marcellus Shale deposit, which stretches beneath the Appalachian Mountains. It's also led to spills, fires, and explosions — and complaints from neighbors whose drinking water became contaminated.

While some states have welcomed the drilling, others, including New York, have banned it outright. In Maryland, there are no active natural gas drilling operations and no pending applications.

Maryland had a de facto moratorium on fracking that ended when Gov. Martin O'Malley left office in January.

O'Malley, a Democrat, put all permit applications on hold during a nearly four-year study that ultimately resulted in proposed regulations late last year.

Environmentalists said some of O'Malley's rules would be ineffective; drilling companies said some parts would be too onerous. The rules are still going through Maryland's lengthy regulation approval process.

Gov. Larry Hogan, a Republican, has not said whether he would go forward with the regulations as written. But he has said that he believes fracking can be done safely and would bring jobs to economically depressed Western Maryland.

Most previous attempts at a ban have been blocked in the Senate's Education, Health and Environmental Affairs committee by its chairwoman, Democratic Sen. Joan Carter Conway of Baltimore.

Zirkin's legislation is moving through a separate panel: the Judicial Proceedings Committee, which Zirkin chairs.

Conway called Zirkin's bill "a way to get around the fact that I won't ban it."

She offered, in triplicate, a prediction about the fate of the legislation if it did reach the floor of the Senate.

"It's never going to pass," she said. "It's never going to pass. It's never going to pass."