Portions of Community Bill of Rights Ordinance Struck – Court: Communities Must Allow “Legal” Uses, Including Frack Waste
Chad Nicholson, PA Community Organizer
GRANT TOWNSHIP, INDIANA COUNTY, PENNSYLVANIA: Yesterday, U.S. District Magistrate Judge Susan Paradise Baxter issued a decision invalidating some provisions of a Community Bill of Rights Ordinance in Grant Township. The Ordinance was passed on June 3, 2014, by the people of Grant Township to protect residents’ rights to local self-government, pure water and clean air by banning corporations from operating frack wastewater injection wells. Pennsylvania communities are increasingly threatened by injection wells, which endanger drinking water and local aquifers, and have caused earthquakes in neighboring Ohio.
The Township was then sued by Pennsylvania General Energy Company (PGE) in August 2014. PGE, which has a history of permit violations in Pennsylvania, claimed it has a “right” to inject fracking wastewater within the Township, against the will of the people who actually live there.
Yesterday’s decision coldly illustrates the perverse relationship between corporations and our own State and federal governments. Prior to the adoption of the Community Bill of Rights last year, the Grant Township Supervisors received a letter from a law firm representing PGE, threatening the Township with a lawsuit if the Ordinance were adopted. That letter lectured the Township about Pennsylvania law, stating that “a municipality must authorize all legitimate uses somewhere within its boundaries.” Of course, that language was regurgitated in the lawsuit that PGE eventually filed against the Township.
Judge Baxter used nearly identical language in part of her opinion yesterday, writing: “Although Defendant wishes it were not so, the development of oil and gas (which necessarily includes the management of waste materials generated at a well site) is a legitimate business activity and land use within Pennsylvania.” The opinion notes that municipalities must allow all legitimate uses, thereby preventing Grant Township from protecting the community by prohibiting injection wells.
When corporations and the courts use the same language to define the dumping of toxic waste in a community as a “legal” activity, and require that communities accept that activity even against the will of those who live there and would be harmed by it, we can see that the problem is ultimately not about an injection well, but rather is about the current system of law that privileges corporations above communities.
While this decision may come as a shock to many, the people of Grant Township have long understood that the system of law generally does not recognize the authority of communities to say “no” to corporate projects which threaten the health, safety, and welfare of those communities. Ever since the federal Environmental Protection Agency issued a permit to legalize this frack waste dumping in Grant Township last year, residents did not necessarily believe they would find a remedy in the federal courts.
And that is the reason they adopted the Ordinance in the first place: the people of Grant Township had to act locally to protect their rights precisely because state and federal agencies refused to do so. This understanding about how the existing system of law protects corporate “rights” over community rights further illuminates the need for Section 8 in the Grant Township Ordinance:
“Through the adoption of this Ordinance, the people of Grant Township call for amendment of the Pennsylvania Constitution and the federal Constitution to recognize a right to local self-government free from governmental preemption and or nullification by corporate ‘rights.'”
Communities like those in Grant Township are now joining with other communities and groups to build a statewide movement to eventually change the state constitution to recognize the people’s right to adopt laws like Grant’s. Yesterday’s ruling, however unjust, will help to reveal how the current system works, and may serve as a catalyst for the larger statewide change that is needed to protect our communities from corporate harms.
Grant Township will be considering an appeal of the decision to the Third Circuit Court of Appeals.
The Community Environmental Legal Defense Fund is providing legal counsel for Grant Township to defend the Community Bill of Rights Ordinance.
Through grassroots organizing and the practice of public interest law, the Community Environmental Legal Defense Fund works with communities across the country to establish Community Rights to democratic, local self-governance and sustainability. CELDF has assisted nearly 200 communities to ban shale gas drilling and fracking, factory farming, water privatization, and other threats, and eliminate corporate “rights” when they violate community and nature’s rights.