‘Unrepentant’: Grant Township Refuses to Bend to the Fracking Industry
[Document library featured below]
Thanks to a group of fearless local residents, Grant Township (Indiana County, Pennsylvania) has successfully denied a frack waste injection well. The fight began in 2013, leading to the passage of a 2014 ordinance, and the eventual democratic enactment of a 2015 Home Rule Charter banning frack waste and recognizing the rights of local ecosystems.
The famous Grant Township case is likely going to trial. The small community has made history and international headlines for its passage of multiple local laws establishing the rights of ecosystems and challenging core legal doctrines that prop up the fossil fuel industry and corporate power. Its fight hits at the heart of local governments’ power to heighten state standards and contains broad implications for local activism in Pennsylvania, and beyond.
It is extremely rare for a case like this to go to trial. Among other things, going to trial means the state and the fossil fuel industry are being compelled to testify and provide documents through the discovery process. It will also grant the opportunity to show how the Pennsylvania Department of Environmental Protection (DEP) has failed in its duties to protect the environment in the state.
So, in the face of state and federal negligence, are communities allowed to protect themselves? What protects communities from corporate exploitation when state and federal agencies are captured by industry? What legal doctrines does this implicate?
This case could have huge implications for the state of Pennsylvania, and grassroots resistance to exploitative corporate industrests. The judge is taking this seriously (given the extensive time that goes into preparing for trial), although many communities (including Grant) have learned over the years that courts almost always side with the industry. But what lessons, outside the courtroom, does this provide?
Despite years of legal attacks by the private Pennsylvania General Energy Corporation (PGE), the DEP, and a smear campaign by the oil industry attack group Consumer Energy Alliance and other pro-drilling interests, local residents of Grant Township have reasserted and continued to defend their local lawmaking.
In March 2020, their resistance successfully compelled the first-ever enforcement of a local Rights of Nature law, when the Pennsylvania Department of Environmental Protection actually revoked a frack waste permit while citing Grant Township’s local law that bans such wells and asserts the rights of local ecosystems. That development came one week before the U.S. Environmental Protection Agency was effectively suspended by the Trump Administration.
Grant Township has been sued in state and federal court — by the industry as well as the Pennsylvania DEP. One of Grant’s local laws legalized non-violent direct action to prevent the destruction of ecosystems.
In a previous case, the ability of attorneys to give arguments in favor of Grant Township’s law was challenged by the industry, with the court ultimately siding with the industry. This led to declarations in support of Grant’s attorney, including from an attorney with the Center for Constitutional Rights.
As referenced, the story has been ongoing since 2013. Here is some reading to get caught up to speed. There are lots of details not included and not reported on, so please reach out if you’d like to be kept in the loop, have any questions, or would like to speak further. I can put you in touch with our attorney, Karen Hoffmann, and my colleague Chad Nicholson who is on the ground.
Timeline of events:
2013: Residents in Grant Township learned that PGE was applying for permits to legalize the injection well. Despite hearings, public comments, and permit appeals demonstrating residents’ opposition to the project, the federal Environmental Protection Agency issued a permit to PGE. To protect Grant’s water, community members founded the East Run Hellbenders Society.
2014: Residents requested the help of the Community Environmental Legal Defense Fund (CELDF). Grant Township Supervisors, with broad community support, passed a Community Bill of Rights ordinance in June. The ordinance established rights to clean air and water, the right to local community self-government, and the rights of local ecosystems. The proposed injection well was prohibited as a violation of those rights.
2014: Following passage of the ordinance, Pennsylvania General Energy Company (PGE) sued the Township in federal court, claiming the corporation had a “right” to inject within the Township. The Pennsylvania Independent Oil and Gas Association (PIOGA) was allowed by the judge to intervene, but the Hellbenders and the ecosystem were not.
2015: Federal Magistrate Judge Baxter invalidated parts of the ordinance, stating the Township lacked authority to ban injection wells. Judge Baxter ruled that the Ordinance violated the Second Class Township Code and the Limited Liability Companies Law and was unlawfully exclusionary. Significantly, Judge Baxter also expressly ruled that the Oil and Gas Act did not preempt the Ordinance. Three weeks later, in November 2015, a supermajority of residents voted in a new Home Rule Charter. The rights-based Charter reinstated the ban on injection wells, changing the township’s form of government and overriding the judge’s decision. (CELDF assisted the community with the drafting of the Charter and is representing the Township in ongoing litigation with PGE.)
This adoption of a Home Rule form of government placed the township back in the driver’s seat. Under the Pennsylvania Constitution and Pennsylvania statutory law, home rule municipalities, such as Grant Township, enjoy broader powers than do second class townships.1
Section 401 of the Charter rejects corporate “rights” by providing, in part: “Corporations that violate this Charter or the laws of the Township, or that seek to violate the Charter or those laws, shall not be deemed to be ‘persons’ to the extent that such treatment would interfere with the rights or prohibitions enumerated by this Charter or those laws, nor shall they possess any other legal rights, powers, privileges, immunities, or duties that would interfere with the rights or prohibitions enumerated by the Charter or those laws, . . . .”
2016: Building upon the Home Rule Charter, Grant Township Supervisors passed a first-in-the-nation law legalizing direct action to stop frack wastewater injection wells within the Township. Tim DeChristopher, co-founder of the Climate Disobedience Center, stated, “I’m encouraged to see an entire community and its elected officials asserting their rights to defend their community from the assaults of the fossil fuel industry, and I know there are plenty of folks in the climate movement ready to stand with Grant Township.”
2017: The DEP issued a permit to PGE to inject toxic frack wastewater into Grant Township. Simultaneously, the DEP sued Grant, claiming the charter unlawfully interferes with state oil and gas policies.
2017: A lawyer for PIOGA said to the media that he wanted to bankrupt CELDF.
2018: Magistrate Judge Susan Paradise Baxter obliged the oil and gas industry by granting PGE’s sanctions motion, holding two attorneys representing Grant Township liable for $52,000 or ten percent of PGE’s attorney fees. (Judge Baxter held stock in oil companies KBR, Inc., a division of Halliburton, and Occidental Petroleum, as well as coal company Peabody Energy and mining companies Vale S.A., Royal Gold, and Silver Wheaton until 2014, just before taking the case.) A former president of the Center for Constitutional Rights filed a declaration in opposition to PGE’s motion for sanctions. In it they wrote that such sanctions serve “to ‘chill’ the willingness of attorneys who seek to change unjust and illegitimate existing law.” For example, the declaration pointed to the abolitionist lawyer Salmon Chase, who challenged slavery and fugitive slave laws in the courts.
2019: On appeal, PGE sought further sanctions and attorneys’ fees of more than $600,000 against the attorneys and CELDF. After months of legal negotiations, CELDF and Grant decided the financially prudent decision was to settle for $75,000. CELDF paid the entire settlement. The settlement does not allow injection wells to be sited in the township.
2019: On Sept. 17, 2019, a proposed amendment to the Pennsylvania constitution was introduced into the Pennsylvania House of Representatives. This “Local Self-Government Amendment” (HB 1813) would secure powers for local governments to ban harmful activities such as injection wells.
2019: The DEP once again asked the Commonwealth Court to dismiss Grant’s counterclaims against it. After oral argument, the Court denied the DEP’s motion.
March 2020: For the first time in U.S. history, a state was successfully pressured to enforce a local Rights of Nature law in Grant Township, Indiana County, Pennsylvania. After the Court’s decision siding with Grant, the DEP revoked a permit for the frack waste injection well in Grant Township. DEP officials cited Grant Township’s Home Rule Charter banning injection wells as grounds for their reversal.
September 2020: An article in Marcellus Drilling News, a pro-industry publication, described Grant as the following: “Unrepentant. That’s the best single word we can think of describing the attitude of ‘leaders’ in Grant Township (Indiana County, PA).”
December 2020: The gas company, PGE, sued Grant Township again in federal court, claiming the Charter violates its constitutional rights. In its complaint, PGE said it was trying to sell the injection well but was not able to because of Grant’s Charter.
2021: The Commonwealth Court set the lawsuit by DEP for trial. Grant Township has also brought counterclaims against the DEP which will be heard, including whether DEP has failed in its duties to protect the environment under the PA Constitution’s Environmental Rights Amendment, Article 1, Section 27.
Trial is tentatively scheduled for April 2022.
Some key points:
- The state of Pennsylvania, a fracking company, a federal court, and a gas lobby association have come down hard in an effort to overturn historic laws in Grant that have successfully warded off a controversial fracking waste injection well in the community.
- Grant’s Home Rule Charter recognizes the right of local ecosystems to exist, flourish, and naturally evolve.
- The plaintiff, the Pennsylvania Department of Environmental Protection, was the subject of investigation by Pennsylvania Attorney General Josh Shapiro. This led to the release of a 243-page Grand Jury report into shale drilling in Pennsylvania, showing governmental regulators, specifically the Pennsylvania Department of Environmental Protection, failed to keep the state’s residents safe from the fracking boom. Link to Attorney General’s report: https://www.attorneygeneral.gov/wp-content/uploads/2020/06/FINAL-fracking-report-w.responses-with-page-number-V2.pdf
- In this case, there will be testimony from both the industry and DEP as well as the community and other Pennsylvanians impacted by the fracking boom.
- Over 1,000 pages of evidence about the impact of the fracking industry in Pennsylvania has already been filed. Discovery documents and other court filings, including depositions from across the state and expert testimony, will be released / updated on our website as they enter the public domain.
- A bombshell report revealed that the Environmental Protection Agency has allowed oil and gas companies to use toxic chemicals in their fracking fluids despite warnings from government scientists about the potential dangers. This has direct impacts on Grant’s fight.
- In an admission of fracking’s harms, the state has partnered with other states to ban fracking in the Delaware River Basin. Yet the practice, including the injection of its toxic and radioactive waste, continues to be permitted elsewhere in the state.
Commonwealth of Pennsylvania, Department of Environmental Protection, Petitioner
Grant Township of Indiana County and The Grant Township Board of Supervisors, Respondents
[The attorneys of record representing the respondents are CELDF contract attorneys Karen Hoffmann (Law Firm: Syrena Law) and Terry Lodge.]
Pennsylvania General Energy Company, L.L.C is an intervenor in the case.
Exhibit A – Grant Township’s 2014 Ordinance
Exhibit B – PGE’s August 8, 2014 complaint against the 2014 ordinance. Filed in United States District Court, Western District of Pennsylvania, Docket Number 1:14-cv-00209-JFM.
Exhibit C – DEP’s August 12, 2015 letter announcing it suspended its review of PGE’s frack waste well Permit Application pending outcome of the litigation over the 2014 ordinance.
Exhibit D – Federal Magistrate Judge Baxter’s October 14, 2015 opinion siding with PGE. Judge Baxter ruled that the Ordinance violated the Second Class Township Code and the Limited Liability Companies Law and was unlawfully exclusionary. Significantly, Judge Baxter also expressly ruled that the Oil and Gas Act did not preempt the Ordinance.
Exhibit E – Home rule charter passed by residents of the Township on November 3, 2015 that changed the form of government and banned frack waste injection well again.
Exhibit F – DEP’s March 27, 2017 decision to grant PGE’s Permit Application for the frack waste injection well.
Among the arguments made by Grant Township were:
The DEP lacks standing for all or part of its claims because DEP has not suffered a direct, immediate and substantial injury.
The DEP does not possess any legal rights, privileges, powers, authority or protections that can interfere with, or otherwise trump, the rights and prohibitions enumerated in the Charter.
DEP’s claims are precluded by Section 306 of Grant’s Home Rule Charter, which provides that: “All laws adopted by the legislature of the State of Pennsylvania, and rules adopted by any State agency, shall be the law of Grant Township only to the extent that they do not violate the rights or prohibitions recognized by this Charter.”
The DEP’s assertion of express and implied state preemption violates the people of Grant Township’s right of local, community self-government.
The DEP has failed and is failing to protect the people’s health, safety and welfare, including their right to clean air, water, and soil, and in its duty to preserve the natural, scenic, historic and esthetic values of the environment. Recent investigations summarize DEP’s failures. Grant highlighted investigations by the news outlet Public Herald.
In light of PGE’s past and current violations of environmental regulations, DEP’s decision to grant PGE a permit to dispose of fracking waste in Grant Township is yet another failure by DEP.
DEP has waived any power to assert the doctrine of preemption by failing to protect the health, safety, and welfare of the people of Grant Township, including by failing to prevent the disposal of fracking waste.
DEP failed to exercise its independent judgment and was unduly influenced by corporate interests in issuing the Permit and in initiating this legal action.
The Oil and Gas Act, and regulations thereunder, does not preempt the Charter. That purpose of that Act is primarily “to provide a maximally favorable environment for industry operators to exploit Pennsylvania’s oil and natural gas resources, including those in the Marcellus Shale Formation.”2 It does not protect residents’ rights or the environment, so it cannot be the final arbiter. A similar argument is made, in reference to Pennsylvania’s The Solid Waste Management Act.
“An actual controversy has arisen and exists between DEP and Grant Township because DEP has challenged the Home Rule Charter enacted pursuant to the people’s fundamental right of local, community self-government, and Grant Township maintains that the Charter is a valid law.”
The Charter’s rejection of certain constitutional “rights” is reiterated. These corporate “rights,” illegitimately claimed and asserted by corporations seeking to engage in activities prohibited by the Charter, and certain types of state and federal preemption interfere with the Charter’s rights and prohibitions.
Grant Township rejects a narrow understanding of state preemption doctrine, including the practice of “Requiring prior state legislative authorization before a community can enact local laws pursuant to the right of local, community self-government is unconstitutional, and violates that right and the Charter.”
Applying the doctrine of corporate “rights” to invalidate certain provisions of the Charter would elevate the “rights” of corporations above the rights of people and the environment.
Under Section 303 of Grant’s Home Rule Charter, because DEP issued PGE such a permit, it is “guilty of an offense and, upon conviction thereof, shall be sentenced to pay the maximum fine allowable under State law for that violation.”
The Charter is a constitutionally valid exercise of the people’s right to clean air, pure water, and to preservation of the natural, scenic, historic and esthetic values of the environment pursuant to the Environmental Rights Amendment.
DEP, as a public trustee, also has a duty to protect and advance the rights enumerated in the Environmental Rights Amendment. However, DEP has failed, and continues to fail, to do so, and has therefore violated its public trustee duties to the people.
DEP’s duties under the Environmental Rights Amendment are not exclusive. Grant Township is free to enact stricter laws to advance and protect the rights secured by the Environmental Rights Amendment.
In its filing, the DEP argued:
“The Township is bound by the provisions of the Oil and Gas Act and the Solid Waste Management Act, including the Department’s regulations promulgated thereunder, and likewise subject to Departmental acts taken in the execution of such law.”
A key point of the filing is that the DEP objects to the Charter denying the DEP’s right to authorize the “Yanity” fracking waste injection well. DEP complained:
“Section 302 of the Home Rule Charter…purports to nullify government permits [that allow for fracking waste disposal].”
The 47-page brief argued “The permit issued by DEP [for the Yanity well] violates the rights and prohibitions enumerated in the Charter.”
The lawsuit, filed in the court includes the following summary:
“While Seneca Resources was engaged in the permitting process, Highland Township adopted an ordinance which, among other things, made it unlawful for corporations to deposit, store, treat, inject or process waste water, “produced” water, “frack” water, brine or other materials, chemicals or by-products that have been used in the extraction of shale gas onto or into the land, air, or waters within Highland Township. This prohibition specifically applied to [underground injection control wells]. Ordinance 1-9 of 2014, § 4(a). In January of 2015, Township supervisors notified the state DEP of the Township’s position that the federal EPA permit was invalid as a result of this ordinance and that any permit the DEP issued would be equally unfounded. For its part, Seneca Resources notified the DEP of its contention that the ordinance was unconstitutional and invalid under federal and state law. The DEP, however, suspended its review of Seneca’s application and, to date, has not issued a permit to Seneca Resources.”
A lively debate took place in the courtroom. Among arguments articulated included those by attorney Elizabeth M. Dunne, representing Grant Township:
“Courts have long recognized that the United States Constitution provides a minimum level of protection for the people’s rights and that a state constitution may provide greater protection for those rights. It’s logical then that like a state constitution, the charter, which is the equivalent of a constitution, may also provide greater protections for people’s rights.”
Along with providing a summary of the arguments, the brief includes a rejection of the regressive Dillon’s Rule legal doctrine:
“In its preliminary objections, DEP contends that Grant Township exceeded its authority in adopting the Charter under Art. IX, Sect. 2 of the Pennsylvania Constitution and the Home Rule Law, thereby invoking the doctrine known as ‘Dillon’s Rule.’ ‘Dillon’s Rule’ says that local governments serve at the whim of state legislatures, which have absolute authority to create them, define and limit their powers, and even to eliminate them….Dillon’s Rule should not be applied in this case because the doctrine has become obsolete. As the importance of local self-governance infiltrates various aspects of our society, the legal system must evolve to abandon doctrines that no longer reflect societal needs and values. In the past thirty years, courts have begun to recognize that Dillon’s Rule runs contrary to the need for, and value of, local self-governance. In abandoning Dillon’s Rule as it has previously applied to strict construction of municipal and county powers, the Utah Supreme Court in State v. Hutchinson, 624 P.2d 1116, explained that ‘[i]f there were once valid policy reasons supporting the rule, we think they have largely lost their force and that effective local self-government, as an important constituent part of our system of government, must have sufficient power to deal effectively with the problems with which it must deal.’ Id. at 1120.”
The brief urges the court to see beyond the simplistic analysis of preemption advanced by DEP, which advocates total authority for a pro-drilling Oil and Gas Act, with no checks. Grant’s brief draws attention to Pennsylvania’s Environmental Rights Amendment and a Right to Local Community Self-Government as checks on the fossil fuel industry and state’s collective power to encourage fossil fuel projects like the injection of frack waste water near drinking water sources. Given that the Oil and Gas Act and DEP cannot guarantee “that the depositing of fracking waste will not harm the people and natural ecosystems of the Township,” it is not reasonable to grant them total power.
In this brief, the DEP argues the court should ignore the constitutional issues, writing that Grant “need not seek relief from this Court regarding the Constitutional Challenge.”
Grant quotes from the court’s 5/2/2018 opinion:
“If the Township at trial is able to prevail on its claims in Count 3 that provisions of the Oil and Gas Act and SWMA are unconstitutional, then necessarily those statutory provisions could not serve to preempt local ordinances, and DEP could be enjoined from enforcing them. Similarly, if it can prove its claim in Count 4 that these statutes are being unconstitutionally applied by DEP, an injunction could issue…. Scientific and historical evidence concerning environmental issues, and evidence of DEP’s actions may be necessary to fully adjudicate these Counterclaims as well as DEP’s Complaint.”
The filing includes exhibits and Discovery materials.
Exhibit A – Material Safety Data Sheet.
Exhibit B – Written Discovery provided by DEP. Discovery showed that the DEP has never denied a permit to inject fracking waste into a well; DEP has not taken water samples that could be impacted by the Yanity injection well; and that DEP claims fracking wastewater “consist primarily of constituents commonly associated with brine water.” It also included names of seven DEP employees involved in permitting the Yanity injection well; names of nine DEP employees who have been involved in inspecting the area;
DEP refused some of Grant’s Discovery requests, claiming requests were “objectionable as abusive, onerous, burdensome, and unreasonable.” Requests denied copies of communications or documents about possible impacts to local water; information for how DEP notifies residents of possible drinking water contamination from fracking waste; and DEP’s knowledge of contamination caused by fracking waste in the United States.
Exhibit C – An expert report on the Yanity well.
This came shortly after Grant was sued in federal court by PGE on December 9, 2020.
Pennsylvania General Energy Company’s argument includes exhibits.
Grant Township’s argument includes exhibits.
- The Pennsylvania Supreme Court has stated: “a constitutionally permissible adoption of a municipal charter is not one whit less in dignity than a statute of the legislature granting a charter.” In re Addison, 122 A.2d 272, 276 (Pa. 1956), appeal dismissed, 352 U.S. 956 (1957). Home rule incorporates and reinforces local municipalities’ traditional police powers. Pa. Rest. & Lodging Ass’n v. City of Pittsburgh, 211 A.3d 810, 817 (Pa. 2019). The Court has described “the police power” as that which “promote[s] the health, safety and general welfare of the people.” Balent v. City of Wilkes-Barre, 542 Pa. 555, 669 A.2d 309, 314 (1995) A Commonwealth agency’s challenge to a municipality’s exercise of authority over it does not represent “a contest between superior and inferior governmental entities, but instead a contest between two instrumentalities of the state.” See Department of General Services v. Ogontz Area Neighbors Ass’n, 483 A.2d 488 (Pa. 1984); County of Venango v. Borough of Sugarcreek, 626 A.2d 489, 490 (Pa. 1993); Hazleton Area Sch. Dist. v. Zoning Hearing Bd., 778 A.2d 1205, 1210 (Pa. 2001). A home rule municipality’s exercise of authority should not be lightly intruded upon, and ambiguities about the scope of the municipality’s authority should be resolved in the municipality’s favor. See Nutter v. Dougherty, 938 A.2d 401, 411, 414 (Pa. 2007; Pa. Const., Art. IX, § 2 (“A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.”); 53 Pa.C.S.A. § 2961 (“A municipality which has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality.”).
- Robinson Twp, Wash. Co. v. Com., 623 Pa. 564, 683-85, 83 A.3d 901, 974-75 (2013) (citing 58 Pa.C.S. § 3202).