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Edited on Thu Mar-17-11 09:05 PM by Divernan
The unidentified "businesses" referred to in the article have got to include many of Corbett's campaign contributors, who can now be sued in both criminal and civil courts. In the civil suits, the counties can go for punitive damages, which against these mega-profit corporations, will be very nice indeed. SWEET!
I want to see each of the 1/2 dozen counties pursue this because there are too many of Corbett's stooges left in the Attorney General's office, and they would not pursue the clients of this hauler at all since some would be donors/buddies of the governor. In fact, I don't understand, if this was a longstanding investigation, why the AG's office didn't charge all the business/clients as well, at the same time. Sounds like civil RICO predicate acts to me. It looks like the Governor's interfered with the AG's office to protect his handlers/donors. And if the AG's office IS pressured into pursuing the Governor's buddies, it would probably come to some pissant settlement far below the value of the case against the polluters, allowing them to avoid discovery(see below).
Not only the hauler, but his clients as co-conspirators, can be sued in criminal court, which can result in fines and jail time. The beauty is that the shipper and his business clients can also be sued in civil court where they will be subject to punitive damages and joint and several liability. Odds are so excellent that when the businesses are identified, we will see a list of Corbett's Big Oil contributors!!
PUNITIVE DAMAGES
Punitive damages are calculated not on the proven cost of damage or loss, but on an amount of a defendant's net worth, or in the case of a business, of its value/annual profits, and that amount has got to be enough to punish/hurt the defendant. Punitive damages are granted when the action of the defendant outrages the conscience of the community. Potential for huge bucks there.
JOINT AND SEVERAL LIABILITY
In for a penny, in for a pound.
What joint and several liability provides for is this: Let's say there are 10 defendants - 1 shipper and 9 clients. The jury can determine that one or more of the 9 clients/co-defendants (to a 51% degree of certainty) knew that the guy was dumping illegally, and hold them liable, along with the hauler. Maybe someone like a small mom and pop restaurant owner was too simple to realize the dumping was illegal. Then the jury could let them off the hook. But Big Oil drilling companies? Guilty! Guilty! Guilty! Wouldn't be surprised if the experienced drilling companies didn't give the hauler some suggestions as to where and how to dump the wastewater. And the hauler could easily roll over on them to cut a deal and give evidence against them. Again, the AG's office, in sucking up to Corbett, could choose not to offer such a deal, in order to protect the Big Oil clients.
GO FOR THE DEEP POCKETS!
Now "vast quantities" of toxic materials will translate to a very high verdict - let's say, hypothetically, 50 million dollars for cleaning up the damage, and then another 50 million for punitive damages. The jury will hear testimony and divide up liability based on how much waste originated with each individual defendant. Then you take the verdict, say $100 million and match it to the percentages. Could be, hypothetically, 50% to the hauler and the other 50% divided up among the defendants/clients, based on what portion of the waste came from each one. So you have Joe's Restaurant at 1% and a big oil driller, such as Chesapeake Energy at 20%, and so on. With a huge verdict, chances are good the hauler does not have assets to pay off 50%. Maybe Joe's Restaurant doesn't have assets to pay off its 1%. But the Big Oil drillers have enough assets to pay off the judgement against themselves AND make up the shortfalls of the other defendants! So the courts take all the assets the hauler has and all the assets of Joe's Restaurant, and then hits up the Big Oil Marcellus shale drilling companies for the balance. In other words, even if a company like Chesapeake Energy was held liable for only 1 % of the damages, Chesapeake Energy, because of its deep pockets, could end up paying 99% of the verdict.
RULES OF EVIDENCE/DISCOVERY
And as I think about it, this is a fantastic opportunity, because NOW, the state and the individual county courts, in both criminal and civil cases can force the drillers/clients to finally reveal each and every toxic substance present in the waste water, and the amounts of each which were used in their drilling. Up until now, they have refused to identify all the toxins, and the amounts used, claiming trade secrets or some such crap. And of course Corbett & his stooges in the General Assembly, DEP and DCNR were not about to demand that information.
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