Cuomo Fracks New York State with Irony and Disassociative Policy Disease

(BREAKING NEWS: With so many promising initiatives outlined by the Governor in his State of the State Address, it may seem like base cavilling to focus on a single issue like “fracking,” but my underlying assumption is that high-volume, high-pressure hydraulic fracturing is not the “problem.” It is a symptom of the problem and it serves quite nicely to illustrate a corollary: “If you partner with industry (especially the gas extraction industry) you will be forced to engage in tortured reasoning, mad dashes left and right and a convoluted persecution of the laws that govern public Agencies. (The State Administrative Procedures Act ((SAPA), for instance, figures heavily in an intent to sue notice prepared by David and Helen Slottje, founding attorneys at Community Environmental Defense Council, Inc. Last night, as this Breathing article was getting final edits, the Slottjes wrote, “…we will turn a version of this [notice] into a formal petition to the State detailing why the regs and the draft SGEIS are illegal, demanding that the regs and the draft SGEIS be withdrawn, and placing the State on notice that suit will be brought if the demand is not honored.”)


 

(BREAKING NEWS:  With so many promising initiatives outlined by the Governor in his State of the State Address,  it may seem like base cavilling to focus on a single issue like “fracking,” but my underlying assumption is that high-volume, high-pressure hydraulic fracturing is not the “problem.”   It is a symptom of the problem and it serves quite nicely to illustrate a corollary:  “If you partner with industry (especially the gas extraction industry) you will be forced to engage in tortured reasoning,  mad dashes left and right and a convoluted persecution of the laws that govern public Agencies.  (The  State Administrative Procedures Act ((SAPA), for instance,  figures heavily in an intent to sue notice prepared by David and Helen Slottje,  founding attorneys at Community Environmental Defense Council, Inc.  Last night, as this Breathing article was getting final edits,  the Slottjes wrote,  “…we will turn a version of this  [notice] into a formal petition to the State detailing why the regs and the draft SGEIS are illegal, demanding that the regs and the draft SGEIS be withdrawn, and placing the State on notice that suit will be brought if the demand is not honored.”)

********************************************

First, whether you are a pro-fracking or pro-Moratorium New Yorker,  when you searched the text of Governor Cuomo’s  State of the State Address for some variation of “frac,”  “fractured,”  “frack,”  or “frackturing,”  you were immediately rewarded with several instances of  “FRAC.”   Armed with a fresh cup of coffee or some sedative,  you prepared to delve into the convoluted shoals that are Cuomo’s  gas extraction policy.

And that’s where you encountered the first multi-layered irony.  During the past month, activists sent New York’s Department of Environmental Conservation (DEC)  more than 200,000 comments about the Agency’s  regs,   draft SGEIS,  its review process and lack of adherence to State law.  Many of those comments were submitted “under protest” and came on the heels of more than 60,000 submitted during the last round of dSGEIS comments.  But the “FRAC” in the Governor’s speech didn’t refer to gas, extraction or hydraulics.  It’s the Food Research and Action Center which studies accessibility to “affordable fresh fruits and vegetables” and the impact of that accessibility on health.  It is a notable initiative but kind of moot if New York’s  fertile foodsheds are fracked.

You settled in a little deeper and began to review the State of the State Address category-by-category.

Under the broad heading of “Economic Development,” Governor Cuomo  touted Tax-Free Hot Spots, Academics and Unemployment Insurance.  He announced, “The Adirondack Challenge, a national rafting and paddling competition…[that] will  focus the world’s attention on the unparalleled natural beauty and recreational opportunities of the Adirondacks to attract tourists to Upstate New York.”

That’s lovely for the Adirondack and Catskill Parks which are protected from fracking by the NYS Constitution, but how will tourists reach those oases if not via a scenic gas drilling byway?   Additionally, as Cuomo  plots to protect some areas of New York State as more worthy of conservation than others, the Adirondack Mountain Club has reminded him, “It is clear from Article XIV, section (3)(1) of the Constitution that the state cannot enter into a lease with any private corporation for the extraction of natural gas from any state forest or reforestation area located in the counties of Greene, Ulster, Sullivan, or Delaware counties.”

Uh oh.

The Governor spoke to the Economy of Tomorrow and laid out a plan to Make New York the Leader in the Clean Tech Economy. He pledged himself to the creation of a workforce capable of meeting the new demands of his 21st century model.

And he drew a special bead on Upstate Economic Development.  He connected the dots between poverty, food deprivation and a failure to thrive. He outlined a plan to bolster our farms and families by strengthening Farm to School Programs. (This is of especial importance to Sullivan County, NY which a recent Robert Woods Johnson Foundation report placed next to last for health factors of all New York State counties.)

The particular attention Cuomo paid to Upstate Economic Development may have set some heads to shaking. On one hand, he lauded the value of Upstate water and  soil resources – citing to them and our foodsheds as indispensable pieces of NY’s economic engine — while,  on the other,  his  SGEIS proposes to protect the NYC and Syracuse watersheds  and leave the Upper Delaware River Basin (and its organic farmers) to the mercy of inadequate setbacks. (Sec.  7.1.5:  Revised Draft SGEIS 2011,  page 7-55.)

For instance,

… as stated in sub-section 7.1.3, the Department proposes that for at least two years the surface disturbance associated with high-volume hydraulic fracturing, including well pad and associated road construction and operation, be prohibited within 500 feet of primary aquifers.

And,

… uncovered pits or open surface impoundments that could contain flowback water … are subject to a 300-foot separation distance from water wells under Appendix 5-B of the State Sanitary Code.  Flowback water tanks and additive containers … which require a 100-foot setback from water wells.  Handling and mixing of hydraulic fracturing additives onsite…requires a 150-foot distance from water wells.  The Department proposes that it will not issue well permits for high-volume hydraulic fracturing within 500 feet of a private water well or domestic-supply spring, unless waived by the landowner.

If those  “set-back mitigations” strike you as inadequate, then add this nugget to the sludge on your plate:  gas wells in New York State will be permitted within 150 feet of schools.

That’s right.  As Cuomo  outlined a broad range of education improvements with optimistic headings like,  more learning time,  full-time pre-k programs for highest needs students, better teachers, principals and evaluation systems — all excellent proposals —  his SGEIS will allow gas wells to be drilled within 150 feet of those excellent teachers, students, playgrounds, programs and classrooms.

No doubt,  Disassociative Policy Disorder strikes again.

Fighting Hunger in New York

Governor Cuomo has good reasons for envisioning a future-New York where our families are well-nourished by the bounty of our own organic farms. (New York farmers regularly lead the nation in produce donated to food banks and food pantries.  Just sayin’.)

In 2006,  NYS was home to “580 certified organic farms  with 68,864 acres in production.  In addition, there were more than 100 organic processors doing business in the State…”

Only two years later, the US Department of Agriculture reported that  NYS had grown to  827 organic farms and was ranked fourth in the nation as a result.   More,   NYS was second in the country with  319  organic dairy farms;  second to Wisconsin with 99 organic beef farms  and fifth for organic vegetable and melon farms with 190.  (Our $60.2 million dollars in organic milk sales for 2008 placed us fifth in the nation.)

The Governor even cited to  Bay Shore’s Farm to School Project, “Edible EastEnd, an innovative collaboration between Long Island’s Bay Shore Union Free School District, the New York State Department of Agriculture and Markets and Office of General Services, and Long Island potato farmers to increase service of Long Island potatoes in Long Island Schools)…”

And he pledged to create a Statewide Anti-Hunger Task Force with one goal being to increase “the use of New York farm products and healthy foods in anti-hunger programs.”

Yes, while painting a rosy picture of New York State’s schoolchildren being educated for the 21st century in a state fueled by sustainable industries and locally-grown food,  Cuomo’s SGEIS has determined that  many New York  schools and much of our vast foodshed will be left vulnerable to the dangers of crazily inadequate setbacks.

Worse, even if the setbacks seem a dandy solution to you, consider that you and the Governor have overlooked another threat to foodsheds in Upstate New York and the Upper Delaware River Basin:  migrating air pollution from the Hancock compressor,  the Millennium Pipeline and other components of the extraction industry.

Fingers crossed that if airborne contaminants endanger the Organic status of local Upstate NY farms, Vermont won’t charge much to  stock NY’s  school lunch programs.

Human Health

In addition to educating our children and feeding them more and healthier local food,  the Gov is determined that New York will Set the “Gold Standard” for Patient Care.

  • “The best way to improve the health of New Yorkers and to lower health care cost is to avoid preventable illness and the health care interventions they require,” he said.

He even devoted 7.5 typewritten pages to sepsis, “An overwhelming immune and inflammatory response to infection.”  He laid out an entire plan of attack to improve preventative care and to combat nosocomial infections. He was inventive and passionate.

He skipped over the fact that his SGEIS has been roundly decried by doctors, medical societies, nurses and epidemiologists for ignoring the cumulative impacts of gas extraction on human health.

He forgot to mention the plethora of reports coming in from the frontlines of Gasland about endocrine disruptions, immune system dysfunction and leukemia.

He ignored that gas extraction and production companies are exempt from revealing the toxins they use in their processes and that doctors are prohibited from telling injured patients the nature of the gas production toxins that have harmed them.

However, our governor made it clear that he intends to be a juggernaut when it comes to ensuring a fair Public Safety Policy that will open like a protective umbrella over all our heads.  He spoke about gun violence and ended with this,  “Some weapons are so dangerous and some ammunition devices so lethal that we simply cannot afford to continue selling them in our state.”

Yes, Governor Cuomo,  but perhaps there are industries and devices “so lethal that we simply cannot afford”  to welcome them into our communities, either.

I won’t belabor the Governor’s insistence that New York State must improve its reputation for cloaked dealings with lobbyists because one sentence drove all his remonstrations from my head,  “A public database will provide the fullest disclosure of lobbyist and other meetings with state officials in the country.”

Then why, oh why,  Governor Cuomo, did activists have to labor so hard to expose the fact that  Independent Oil and Gas Association  (industry lobbyist) worked hand-in-hand with  NY’s Department of Environmental Conservation to write our State’s gas extraction regulations?

The Governor also outlined a number of new Public Safety initiatives in response to the devastation wrought in New York State by Hurricane Sandy.  He described the NYS 2100 Commission and the importance of building “resiliency” into our “planning, protection and development approaches…”  He vowed to “reduce the emissions that contribute to our changing climate,”  to “increase alternative local renewable power sources,”  and to “provide assistance to property owners to mitigate or sell properties in vulnerable areas.”

Although the Gov is referring to homes damaged or obliterated by Hurricane Sandy,  the door he opens is intriguing.  Will those whose properties are damaged or destroyed by their neighbors’ fracking also be considered “vulnerable?”  Will those property owners also be helped to relocate?  Will they be helped to find a new and better quality of life? Will our organic farmers be rewarded with new  sources of clean water and soil?

And when Cuomo says that,  “Much of New York’s infrastructure is aging and susceptible to damage from extreme weather events or seismic threats,”  is he planning to replace bridges,  roads, and neighborhoods impacted by frack-created earthquakes?

Or when he admits that, “there are miles of aging [ gas] pipeline[s] that are prone to leakage and vulnerable to storm damage (and ground movement) [in New York State],”   does he intend to hire hundreds of new DEC field agents to police, test and enforce remediation of those leaks?  Or will citizens be detailed to stand on either side of the pipes to hold them in place as they rock to the beat of seismic drums?

And when he says we need to “strengthen our wastewater infrastructure” because, “Flooding and storm surges from Lee, Irene, and Sandy resulted in hundreds of millions of dollars of damage to waste water treatment plants and the release of hundreds of millions of gallons of raw and undertreated sewage,”  is he considering just how toxic the stew would be with Marcellus Shale’s radioactive materials added to the mix?

Or does he believe that his newly-minted  World-Class Emergency Response Network —  like All the King’s Horses and All the King’s Men —   will simply put New York  back together again after the extraction industry has bedded, fracked us, and moved on?

 

**********************

 

Additional Links, Resources and Citations:

“Ecosystem resilience is the capacity of an ecosystem to tolerate disturbance without collapsing into a qualitatively different state that is controlled by a different set of processes. A resilient ecosystem can withstand shocks and rebuild itself when necessary. Resilience in social systems has the added capacity of humans to anticipate and plan for the future. Humans are part of the natural world. We depend on ecological systems for our survival and we continuously impact the ecosystems in which we live from the local to global scale. Resilience is a property of these linked social-ecological systems (SES). “Resilience” as applied to ecosystems, or to integrated systems of people and the natural environment, has three defining characteristics:

• The amount of change the system can undergo and still retain the same controls on function and structure
• The degree to which the system is capable of self-organization
• The ability to build and increase the capacity for learning and adaptation”

Source: The Resilience Alliance Website

 

As part of  Governor Cuomo’s  plan to “Harden Our Utilities,”  he wants the following NYS Public Service Commission (PSC) recommendations adopted as soon as possible.  It sounds dandy, actually.  Too bad  these initiatives don’t extend to the Department of Environmental Conservation or the gas extractors that Agency is mandated  to regulate.

  • The PSC will be statutorily authorized to levy administrative penalties against each utility for violations of PSC orders and regulations or upon a finding that such utility has failed to provide safe and adequate service under a “reasonable business” standard (comparable to the prudence standard). The size of the potential penalties will be increased, and provisions will be adopted to ensure that the penalties are paid out of shareholder capital and not passed on to ratepayers.
  • The PSC will be authorized to issue an order that directs a utility to comply with recommendations made pursuant to management and operations audits.
  • The PSC will recommence operational audits at least every five years as currently required under the Public Service Law.
  • To implement the strengthened auditing functions of the PSC, consideration will be given to having a dedicated auditing unit to help ensure that the PSC is well-situated to fully exercise its statutory authority and perform both management and operational audits.
  • Consideration will also be given to creating a dedicated unit for investigating and enforcing utility compliance with PSC orders and recommendations and with utility tariffs.
  • Statutory changes should be considered to explicitly authorize the PSC to formally review the performance of each of the Investor-Owned Utilities to provide safe and adequate service, and order appropriate relief including divestiture of some or all of a utility’s assets, subject to both due process standards and the need for continuity of service. To ensure compliance with the recommendations put forth by the PSC after a review, the Commission also recommends the clear establishment of the PSC’s authority to revoke the Certificate of Public Convenience and Necessity.
  • DPS staffing and budgetary levels will be reviewed to ensure they are sufficient to carry out the newly-designed core functions of the PSC, and procedures should be reviewed to ensure cross-training of the existing workforce, implementation of performance management standards and technology upgrades. Given the substantial retirements at DPS in recent years, the agency currently is not staffed to the level authorized in the FY 2012-13 budget of 524 full-time employees (FTE). Based upon the additional mandates that the Commission recommends, the DPS staffing authorization will be maintained in the FY 2013-14 budget and DPS will recruit and hire up to the 524 FTE allotment to assist in implementation and enforcement of the new mandates.
  • Similar to Sarbanes Oxley where CEOs need to certify the validity of their financial statements, consideration will be given to requiring senior officers of each utility to annually certify to the PSC that the utility is acting in compliance with all applicable State laws, rules, regulations, orders, and procedures, including the statutory requirement to provide safe and adequate service.
  • All appointees to the PSC will have demonstrated competence in some aspect of utility regulation as well as a concern for the public well-being.

House Financial Services Subcommittee Hearing


Here are high points of the Hearing I found interesting and some of my own thoughts. (Quotation marks are included where statements are actual quotes rather than the “sense” of what was said.)

BARNEY FRANK, Democrat & Financial Services Committee Chairman.   As major stockholders, the US Government should try to recoup $165 million in bonuses by filing  a lawsuit alleging “poor performance” on the part of  bonus recipients.  He also demanded the names of bonus recipients and updates when bonus recipients either return or refuse to return  bonus money. (Although New York’s Attorney General Andrew Cuomo is in receipt of these names, Liddy expressed a need to protect bonus recipients because of  deadly threats made against them and their families.)  (According to  the Center for Responsive Politics,  Frank received $202,548 in contributions from the Insurance Industry.)

OLYMPIA SNOW, (R) Maine.   Offered AIG bailout provisions which would have disallowed most of the oversized bonuses.  (Received $5,000, according to the Center for Responsive Politics.)

CHRISTOPHER  DODD, (D) Connecticut.  Snow’s amendment was (allegedly) struck by  Connecticut’s  Chris Dodd.  How he did it is unclear.  At first, he denied the act.  Subsequently,  he said  he received instructions from Treasury and/or The White House.  Regardless, striking the provision resulted in Congressional approval of bonus contracts entered into before February 11, 2009.  As a result,  165 million taxpayer dollars have been paid to architects of the debacle. Reportedly, Dodd received $852,556 from insurance lobbyists.  (Center for Responsive Politics)

STEPHEN LYNCH, Massachusetts:  “We amend  contracts all the time.  My auto workers were badgered and badgered….  These [AIG] guys lost billions of dollars  and still believe they’re entitled to these bonuses.” (Lynch  received $35,299 according to the Center for Responsive Politics)

PAUL KANJORSKI, Chairman, Financial Services Subcommittee on Capital Markets (D-PA).   Admitted to knowing about the incipient bonus payments  two months  ago and  “warned Liddy that  paying the bonuses would be a  big mistake.”  “You [CEO Edward Liddy] should have told the bonus recipients to ‘sue us.'”  (Kanjorksi did not mention warning anyone else and according to the Center for Responsive Politics, received $345,548 in donations from the insurance industry.)

Joel Ario,  State of Pennsylvania Insurance Commissioner and  Chairperson of the National Association of Insurance Commissioners.  Ario believes that AIG’s toxic holdings could be walled off from its healthy funds-at-large.   (NB:  Therefore, the company at-large could survive if its sick subsidiaries were permitted to fail.) (Also see: [Funny] Side of the [Wall] Street:  Obamanomics.)

Neither the Government Accountability Office (GAO) nor the federal Office of Thrift Supervision (OTS)  have investigated whether AIG fraudulently misrepresented its health and wealth at the time it was creating “retention” and other bonus contracts  “to the tune of $400 + million  with the division that was bleeding to the tune of $40 billion.”

Another committee member asserted, [“The distribution of these bonuses] borders on fraud and criminality.”

According to Scott Polakoff of OTS, his agency knew the risk of the credit default swaps  in 2004 and did nothing to avert the collapse.  OTS did not close AIG’s toxic financial products division even though “the agency had a complete picture and oversight authority” to do so.  Polakoff further stated that “OTS had sufficient  expertise and personnel” but in effect, since Congress didn’t instruct OTS to review the  bonus contracts before AIG’s bailout was approved, the agency didn’t do the research.

Rodney  Clark of Standard & Poor’s (S & P) rating agency was asked,  “How can we depend on you and were mistakes made?”  Clark answered, “Hindsight being 20-20…, our conclusions [of AIG’s solvent value]  changed rapidly once the market started to collapse.  Market values are important as a guideline.  We could not understand  how quickly the value of mortgage backed securities would decline….  (NB:  On what basis, then,  did S & P  justify its AA-  rating until  September 15, 2008 if ?)  S & P hedged its bets. Ratings are based on current value and  give prospective investors a factual basis for predicting future performance.)  Clark  went on to say,   “In 2008, excluding  investment losses,  AIG would’ve been profitable.”

Really?  Does that mean S&P didn’t see the looming  losses or didn’t consider them relevant to the total value of the company?  (See: Ratings Agencies falsify reports or search CSPAN’s  archives for quotes from ratings agents who knew full-well that the mortgage-backed securities were toxic but provided healthy ratings because…that was the outcome corporations paid them to obtain.  (See:  previously-cited statement from Joel Ario.)

Edward LIDDY,  AIG insurance Chairman & CEO (temporarily appointed  in 2008 to detoxify AIG).   Prior to Mr. Liddy  taking his witness  seat,  he was stopped by  “pink lady demonstrators” who questioned him (in part) about  consequences to returning war veterans whose savings were invested  with AIG.  If he answered, it wasn’t televised.

He did tell us that the risk to AIG was unacceptably high if we did not pay the $165 million in bonuses. “It was my determination,” he said, “that AIG-FP would unravel if employees weren’t retained to wind down the projects they were working on.  Which they did.  They’ve reduced $2.7 trillion in toxic assets to $1.6 trillion.  It’s my intention to reduce those debts, sell AIG’s insurance companies and strengthen the healthy portions of our business.  If we don’t pay our debts, that triggers bankruptcy. I’ve asked AIG-FP (financial product) employees to return a portion  of the bonuses.   Believe me, I wouldn’t have approved the contracts if I’d been CEO  at the time they were  created.”

Liddy further asserted that Federal Reserve Chairman Ben Bernanke acquiesced to the  payment of retention bonuses.

“We didn’t tell Congress because nobody told us to,” Liddy explained.  “We’re partners with the Federal Reserve. They participate in  activities leading up to board meetings and they attend board meetings. I asked if they had comments  or different points of view as far as bonuses and everything else.  The Federal Reserve  did  not  disagree with our assessment that AIG-FN was at risk of jeopardizing the monies already given if we didn’t pay the bonuses. We were told by our attorneys that the contracts were unbreakable.  I assumed they shared  with Treasury and Congress information they gained from us.  The Secretary of the treasury did not know we were going to make the [bonus] payments though the Federal Reserve did.  It’s  up to the Federal Reserve to  discuss”  salient issues with the Secretary of the Treasury.

Later,  Treasury Secretary Timothy Geithner said he didn’t know about the bonus contracts until two weeks ago.

Countering assertions of possible fraud, Liddy said he believes,  “AIG was solvent when the retention contracts were drawn.”   (On what factual basis did he develop this assessment?  Or,  is he just repeating assessments  from ratings agencies which regurgitated AIG’s own corporate projections?  Isn’t that the same self-quoting claptrap that got us into Iraq?)

Liddy  continued,  “AIG has problems besides the mortgage-backed securities. There’s oil accounts and other  utilities in trouble.” (This appears to contradict his assertions of fundamental solvency.)

ED PERLMUTTER, Committee Member.  “There’s a whole fraud concept that says ya’ can’t be handing out bonuses when you’re insolvent.  I don’t think these bonuses should have been paid.”

Some legal issues, AIG’s Employee Retention Plan and relevant case and statutory findings.

Currently, some members of Congress are promoting tax legislation which would target bonuses paid by corporations that received stipulated bailout funds. Their idea is to re-appropriate the funds already disbursed. (There is every reason to believe such targeting is unconstitutional.  Seeing as how Congress writes the laws and  has more than its fair share of attorneys,  you’d think they’d know that.)

AIG-FP 2008  Employee Retention Plan, effective December 1, 2007

(Importantly, there is no signing date on the Retention Plan although it specifically covers 2008 and 2009.)  According to CEO Liddy’s Executive Summary of the retention plan in which he discusses the bonuses,  “The plan was implemented because there was a significant risk  of departures among employees at AIGFP, and given the $2.7 trillion of derivative positions at AIGFP at that time, retention incentives appeared to be in the best interest of all of AIG’s stakeholders…. This resulted in a $313 million total for 2008 and a $327 million total for 2009… The 2008 awards range from $1,000 to slightly less that $6.5 million.  Only seven employees will receive more than $3 million…. The retention plan is governed by Connecticut Wage Act.  (Section 4.04)”   (NB:  The law provides for the recovery of double damages and attorneys’ fees when wages are improperly withheld and the employer’s refusal to pay wages lack a good faith basis. Conn. Gen. Stat  sections 31-72.)  “In addition,”  states Liddy, “individual managers who decide to withhold wages that are due are individually liable for violation of the Wage Act…We have been advised that the bonus provisions of the American Recovery  and Reinvestment Act of 2009 prohibiting certain bonuses specifically exclude bonuses paid pursuant to pre-February 11, 2009 employment contracts.”  (Apparently, this is the  alleged  “Dodd Provision.”)

NB: The definition of “executive employee”  rests largely on whether an employee is salaried, is required to exercise personal discretion in performance of duties,  earns in excess of certain dollar amounts and has (usually) some supervisory responsibilities.

According to the Connecticut Wage Statute (sec. 31-71(e).  “No employer may withhold or divert any portion of an employee’s wages unless (1) the employer is required or empowered to do so by state or federal law and  (i) “Wage” means compensation due to an employee by reason of his employment.  (Italics added for emphasis.)

Liddy’s  Executive Summary referenced Schoonmaker v Lawrence Brunoli, Inc. 828 A.2d64 (Conn.2003). Schoonmaker established that double damages could be paid when salaries are withheld for reasons of  “bad faith, arbitrariness or unreasonableness.”

The courts have also established that, “Punitive damages may be awarded in suits in which it is proven by clear and convincing evidence that the defendant’s [employer’s] actions showed willful misconduct, malice, fraud, wantonness, oppression or [lack of care] which would raise the presumption of conscious indifference to consequences. Under O.C.G.A. 51-12-5.1(b), it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be certain circumstances of aggravation or of outrage.”

New York’s Attorney General Andrew Cuomo may attempt to use the Fraudulent Conveyance Act to recover the bonuses.

In order to pursue Fraud charges, “… the misrepresentation [or omission] must be made knowingly and intentionally, not as a result of mistake or accident; that is, that the person either knew or should have known of the falsity of the misrepresentation [or the false effect of the omission], or that he made the misrepresentation [or omission] in negligent disregard of its truth or falsity.

NB:  Under the Bankruptcy Code, insolvency exists when the sum of the debtor’s debts exceeds the fair value of the debtor’s property, with some exceptions. It is a balance sheet test. 11 USC § 101(32)

18 USC CHAPTER 47 § 1031 concerns  “major fraud against the United States”  and  is another  statute being considered by  New York State’s Attorney General Cuomo. It  provides  the following:

(a) Whoever knowingly executes, or attempts to execute, any scheme or artifice with the intent-

(1) to defraud the United States; or

(2) to obtain money or property by means of false or fraudulent pretenses, representations, or promises.

Therefore, the two most important facts to ascertain  are,  “What was AIG’s actual state of solvency when the bonuses were contracted and did its officers misrepresent that state?”

More Answers Needed:

Which Congress people  received campaign finances from AIG and other financial corporations?  How much did they receive? How did those congress people vote or speak on salient congressional  actions?  (You can find some of the answers at  the Center for Responsive Politics and RollCall.  Feel free to vote accordingly in upcoming elections.)

At the time of AIG’s bailout or request for a bailout, what was the corporation’s actual worth?

Was the United States coerced by fear and intimidation into awarding bailout funds?

Besides Christopher Dodd, who was involved in exempting bonuses agreed to before February 11, 2009?   To  what extent were Treasury and The White House involved?

As always, you can view the hearings at CSPAN.