The Maryland state Senate chamber was abuzz last week on a topic that we frequently write about here at the Monitor–hydraulic fracturing, or “fracking.” Fresh off the heels of former Maryland Governor Martin O’Malley’s decision to permit fracking in the state (subject to significant regulation), Senate Democrats are attempting to push through legislation that would implicitly, if not expressly, impose strict liability on drilling companies.

At issue is Senate Bill 458, sponsored by Senator Robert A. “Bobby” Zirkin, D-Baltimore County. As originally drafted, the bill likely could not be more draconian. Among other things, the legislation would (1) impose strict liability on a drilling company for “any injury, death, or loss to person or property that is caused by the hydraulic fracturing activities”; (2) remove as a defense any argument that a company complied with industry standards, state or federal law, or the conditions of any permit issued to the permittee by a state or federal agency; and (3) create a rebuttable presumption that the hydraulic fracturing activities of the permittee are the proximate cause of any injury, death, or loss to person or property alleged if the plaintiff is located within a certain proximity of the drilling activity.

As Drew Cobbs, executive director of the Maryland Petroleum Council, put it — “This would be the strictest liability bill of anywhere in the country regarding hydraulic fracturing . . . The intent is, in essence, to stop or essentially ban [hydraulic fracturing] in Maryland.” Parts of Maryland sit atop the Marcellus shale, and a Towson University study found that fracking in the Marcellus shale could generate billions of dollars into the western Maryland economy.

As recently reported, there was a frenzied Senate debate over the language of the bill, with particular opposition coming from legislators from western Maryland. While a Senate committee ultimately struck the “strict liability” language from the bill, they inserted a description of the process as “an ultra-hazardous and abnormally-dangerous activity.”

Of course, as many may remember from their law school days, “ultra-hazardous and abnormally-dangerous” are legal terms of art that typically form a basis for imposing strict liability in the first place. Indeed, the Senate decided to seek the state attorney general’s opinion on the legal significance of such language. Not surprisingly, the AG’s office weighed in with an opinion that such language would in fact trigger strict liability:

You asked “if ‘abnormally dangerous’ or ‘ultrahazardous activity’ is another way of saying ‘strict liability’ or does it even relate to strict liability”? As I explain below, strict liability is a tort theory that imposes liability on a party without the need to show negligence. Maryland, like most if not all states, has adopted the legal doctrine of strict liability for ultrahazardous or abnormally dangerous activities, The bill defines hydraulic fracturing as an ultrahazardous or abnormally dangerous activity, thus imposes liability on a person who holds a permit to conduct hydraulic fracturing if the injured person proves the activity caused the harm, regardless if the permit holder exercised reasonable care.

Thus, removing the words “strict liability” from the bill and replacing them with “abnormally dangerous and ultrahazardous” is very much a distinction without a difference. Given that fracking has been around for quite a while, the bill would appear to be driven more by politics than sound policy or science. We will keep an eye on developments relating to this controversial bill in Maryland and report on them at the Monitor.