Grant Township’s 9 Year Fight Against a Toxic Disposal Well: A 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.
A trial WAS tentatively scheduled for April 2022 but lawyers representing PGE successfully petitioned the PA Commonwealth Court and a hearing took place instead.
Summer 2022: As a result of the hearing, Judge Wojcic of PA Commonwelath Court issued an 8 page order, nullifying Grant Township’s Home Rule Charter and ruling in favor of PGE. Later that summer, Grant Township filed an appeal to the decision. The trial, with its previously approved schedule, did not take place.
2023: No news on any of the 3 lawsuits to report.
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.
In this case, there was to 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 here as those documents 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.