Could fracking in North Dakota's Bakken shale formation have a direct impact on New York State? Yes, but the impact isn't limited to prices at the gas pump or home energy heating bills. Instead, the fracking operations are leading to a surge in freight trains hauling crude oil along the state's rail lines to a terminal at the port of Albany, New York. Shale formations such as the Bakken produce crude oil along with natural gas during fracking operations, and some claim that Bakken crude may "more dangerous to ship by rail than crude from other areas."
Here's a pop quiz: after an eleven week trial in federal court, a jury hands down a verdict of nearly $105 million against ExxonMobil for contaminating New York City's drinking water. On appeal, the verdict is upheld. What environmental law enabled the jury to find, and the appellate court to affirm, such a large verdict? The Superfund Law? The Clean Water Act? The Resource Conservation and Recovery Act?
Does the destruction of plaintiff's technical data supporting disclosed oil spill investigation reports get a defendant off the hook? Apparently not, decided the Appellate Division (Third Dept.) in a November 2012 decision, rejecting a defense motion to reverse a plaintiff's trial verdict. Defendants had received the reports themselves, without the backup technical data, but had not requested any of the data for nearly a year after the commencement of litigation, well after a document retention policy caused destruction of the backup data.
If you're familiar with the harsh reality of property owner liability under the New York State Navigation Law's Oil Spill Act, this headline shouldn't raise any eyebrows. However, the holding of State of New York v. C.J. Burth Services, Inc., 79 A.D.3d 1298, 915 N.Y.S.2d 174 (N.Y. App. 3rd Dep't 2010), once again confirms the Draconian nature of strict liability for property owners in Spill Act cases.
Under New York Law, property damage is deemed to occur within the period of an occurrence-based policy, if injury-in-fact takes place during the policy period. See Continental Casualty Co. v. Rapid-American Corp., 177 A.D.2d 61 (App. Div., 1992). An insurer may only refuse to defend an action, however, where a comparison of the policy with the underlying complaint shows on its face that there is no potential for coverage. See Ruder & Finn, Inc. v. Seaboard Sur. Co., 52 N.Y.2d 663 (1981).
N.Y. Navigation Law Sec. 172. Definitions Sections 1 - 6a
Environmental Statutes, Codes, Regulations and Related Materials
N.Y. Navigation Law Sec. 172. Definitions Sections 7 - 14