One PA ecosystem enters the court fray over fracking waste

By Rachel Martin | Watchdog.org

PITTSBURGH — In a sparsely populated township in western Pennsylvania, one ecosystem is attempting to enter a court battle in its own name.

In Grant Township, Pennsylvania General Energy wants to convert one of its fracking wells into a waste disposal well. It received a permit from the U.S. Environmental Protection agency in March.

Township residents are concerned the fracking waste could contaminate the watershed. All the township’s residents use private wells for their drinking water.

The township passed a Community Bill of Rights Ordinance in June, which would effectively ban such injection wells. It states, in part:

“All residents of Grant Township, along with natural communities and ecosystems within the Township, possess the right to clean air, water, and soil, which shall include the right to be free from activities which may pose potential risks to clean air, water, and soil within the Township, including the depositing of waste from oil and gas extraction.”

Unsurprisingly, PGE filed a federal lawsuit in August. PGE wants the court to overturn the ordinance.

In a novel move, the ecosystem — the Little Mahoning Watershed — filed a motion to intervene in the case in November, asserting that nature has its own rights to “exist and flourish.”

“This represents the first time an ecosystem is seeking to defend its legally enforceable rights to exist and flourish by intervening in a lawsuit,” said Community Environmental Legal Defense Fund Executive Director Thomas Linzey in a news release.

The CELDF has been retained by the township to represent it in the case. From the motion:

“For the Little Mahoning Watershed, its very right to exist is threatened by this litigation. If the Court strikes the ordinance, it would legally eliminate the Watershed’s rights, and also authorize PGE to engage in waste depositing activities that would physically impair those rights.”

The motion was filed by CELDF attorneys, who also represent the township.

The Pennsylvania Supreme Court has used environmental grounds in big ways recently.

WRANGLING OVER WASTE: The litigious ecosystem is in Grant Township, Beaver County, highlighted here.

In the Robinson case, decided in December 2013, the court threw out chunks of Act 13 in its 162-page decision. Act 13 attempted to impose statewide uniformity on local regulations. This is the same legislation that established the impact-fees system still in place.

The court found that parts of the act were unconstitutional, violating the state’s Environmental Rights Amendment found in Article I, Section 27 of the Pennsylvania Constitution.

“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”

In Robinson, the court found “the right articulated is neither meaningless nor merely aspirational.”

The court also seemed a little taken aback by the scope of Act 13 declarations: “Reviewing the amended Act, few could seriously dispute how remarkable a revolution is worked by this legislation upon the existing zoning regimen in Pennsylvania, including residential zones. … local government’s zoning role is reduced to pro forma accommodation … .”

This summer, the Commonwealth Court heard residual issues from the Supreme Court decision. Among other things, it eliminated the Public Utility Commission’s role in reviewing local ordinances. Challenges to local zoning matters must now be taken up locally, in a Court of Common Pleas.

One legal analysis noted, “If the Supreme Court’s ruling asserted the supremacy of local zoning authority over drilling, the Commonwealth Court’s ruling cemented it.”

Chad Nicholson, an organizer with CELDF, said the Community Bill of Rights wasn’t based on zoning rights, but on communities’ rights to make decisions.

Lisa McManus, vice president of legal and general counsel for PGE, said the group doesn’t comment on ongoing litigation.