Quantcast
Fracking
Marcellus Shale rig and gas well operation on Ridge Road in Jackson Township operated by Rex Energy. WCN 24/7 / Flickr

Fracking Waste Lawsuit Highlights Dangerous Trend of Corporations Targeting Community Rights Defenders

By Simon Davis-Cohen

In early January, a federal judge ordered the nonprofit law firm Community Environmental Legal Defense Fund (CELDF) to pay $52,000 to an oil and gas exploration company for defending a rural Pennsylvania township's ban on underground injections of fracking waste.

This sanction comes at the request of Pennsylvania General Energy Company (PGE) and the Pennsylvania Independent Oil & Gas Association, but is part of a growing trend to prevent municipalities across the nation from pushing back against state and federal attempts to overrule them.


Starting in 2012, PGE proposed an injection well which, according to Grant Township's Board of Supervisors, "would receive 30,000 barrels [1.26 million gallons] of frack wastewater per month for 10 years." The board of supervisors for this small community near Pittsburgh warned that the injection well "threatens to subject every resident of Grant Township to a slow poisoning, and threatens thousands more who depend on Grant Township's watershed for clean water."

The community's law, they added, bans the injection well "as a violation of our basic civil rights." PGE operates multiple gas-extraction wells in the township.

Rights of Nature, Local Governance

CELDF, which has defended Grant's efforts to prevent waste injection wells for over three years, has worked with some 200 municipalities in the U.S. to defend local laws challenging similar corporate projects. The group aims to drive state constitutional change to bolster the rights of local residents and ecosystems against what it calls regressive state preemption and corporate personhood.

Grant Township, for example, is elevating a "right of self-government," rights "to clean air, water, and soil" and "ecosystem rights" above corporations' "rights" to inject waste from oil and gas extraction in the township.

These types of local laws often face substantial legal pushback from private corporations and states which claim authority over issues such as fossil fuel production. Along with the sanctions against CELDF, PGE is suing Grant Township itself, population 741, for damages that would likely be in the hundreds of thousands of dollars. Among its claims: The injection well ban violates the corporation's rights as a "person" under the First, Fourth, and Fifth Amendments; the Equal Protection Clause of the Fourteenth Amendment; and the Contract Clause and Supremacy Clause of the U.S. Constitution.

Grant Township is the fourth local government CELDF has defended in federal court.

'Frivolous' Legal Arguments

At the heart of the court's decision awarding PGE sanctions against the legal nonprofit (the company originally asked for $500,000) is an argument that the sanctions are justified because CELDF's legal arguments are contrary to "settled" law and therefore "frivolous." This reasoning asserts that corporate personhood and Pennsylvania's authority over municipalities on issues affecting drinking water and fossil fuel development is settled, and therefore CELDF's defense of Grant's claim to the contrary is "clearly unreasonable."

Grant Township, the court wrote, "seeks to disavow constitutional rights afforded corporations so as to prevent PGE from the lawful exercise of its right to pursue gas extraction related activities within its borders." On top of all this, Grant's law recognized legal rights for a local ecosystem. CELDF's attempt to represent that ecosystem in court, the judge ruled, violates the Federal Rules of Civil Procedure, a set of rules that govern how legal proceedings take place in U.S. district courts.

Local Governments Sanctioned Across U.S.

CELDF is not alone in facing sanctions for challenging so-called settled law on similar issues. Defend Local Solutions is a campaign led by Tallahassee's Mayor Andrew Gillum which is aimed at expanding the powers of municipalities in Florida. The campaign said at least seven states have "super preemption" bills on the books that sanction local officials who dare challenge specific state preemption bills that rescind powers from municipalities.

In Florida, for example, Gillum personally faced the threat of sanctions after he refused to repeal a local law that banned fire arms in public parks (even though the ordinance wasn't being enforced).

New bills, such as Texas's highly controversial "show me your papers" and sanctuary city preemption bill (SB4), also include punitive language for municipalities pushing back against state and federal authority.

Texas's bill would fine local officials and employees $25,000 per day or even remove them from office if they defy the law, according to the Mexican American Legal Defense and Education Fund. Parts of this section of the law, however, are hung up in court. However, the court ruled that local officials can be sanctioned if they outright ban police from asking for people's immigration papers, and other sections of the bill are in effect, including a section that threatens punishment for local jail officers. The concept of economic retribution for noncompliance is spreading.

Georgia's 2017 bill, HB37, removes funding from any private college that "prohibits or restricts officials or employees … from communicating or cooperating with federal officials or law enforcement officers with regard to reporting [immigration] status information." And in 2016 Arizona passed a bill which withholds state funds from localities that enact policy that challenges the state's claimed supremacy.

In CELDF's sanction case, the court acknowledges that sanctions can have the effect of "chilling novel legal or factual arguments."

Thomas Linzey, CELDF's director and one of the two attorneys being personally sanctioned, said "that's exactly the point. For years, the oil and gas corporations believed that they could stop the community rights movement by suing municipalities to overturn their local laws; but having failed to do so, they're now coming after the lawyers who are helping those communities to stop drilling. In many ways, the industry's filing for sanctions against us is just proof of how strong the community rights movement is becoming."

In court records, CELDF pointed to Brown v. Board of Education (which overturned "separate but equal" schools for Black and White students, 1954), courts striking down bans on gay marriage, and other novel legal arguments as evidence that sanctions against lawyers who challenge "settled" law could set a dangerous precedent.

"We understand that the real problem isn't the injection well, but the system of law that keeps trying to shut us down," the Grant Township Board of Supervisors said in a statement. "We're not going anywhere."

Reposted with permission from our media associate DeSmogBlog.

Show Comments ()

EcoWatch Daily Newsletter

Sponsored
Popular
Michigan Department of Health and Human Services Director Nick Lyon, seen here speaking to the press about the Flint water crisis in 2016, will be the highest ranking official to stand trial over the public health disaster. Brett Carlsen / Getty Images

Judge Orders Michigan Health Director to Face Trial Over Flint Water Crisis Deaths

Michigan Department of Health and Human Services Director Nick Lyon will be the highest ranking official to go to trial so far as a result of an investigation into the Flint water crisis, The Associated Press reported Monday.

Judge David Goggins ruled Monday there was probable cause for Lyon to stand trial for involuntary manslaughter in the deaths of Robert Skidmore and John Snyder that prosecutors say were due to a Legionnaires' disease outbreak that Lyon was aware of a year before he alerted Michigan's governor, Michigan Live reported. Lyons is also charged with misconduct in office.

Keep reading... Show less
Politics
Coal-fired power plant near Becker, Minnesota. Tony Webster / Flickr / CC BY-SA 2.0

Trump's 'Dirty Power Plan' Could Cost More Than 1,000 Lives a Year

The U.S. Environmental Protection Agency (EPA) unveiled on Tuesday its long-anticipated replacement of the Obama-era Clean Power Plan. The new coal pollution rules will increase planet-warming carbon pollution and could cost more than a thousand American lives each year, according to the EPA's own estimates.

EPA Acting Administrator Andrew Wheeler released the "Affordable Clean Energy Rule" today under President Trump's directive. The new plan encourages efficiency improvements at existing coal plants to ensure they operate longer and allows states to weaken, or even eliminate, coal emissions standards. That's a clear difference from former President Obama's plan, which was aimed at phasing out coal and transitioning to cleaner power sources to avoid dangerous climate change.

Keep reading... Show less
Health
Two workers in protective gear scrape asbestos tile and mastic from a facility at Naval Base Point Loma in California. NAVFAC / Flickr / CC BY 2.0

Why Asbestos Is Still a Major Public Health Threat in the U.S.

Reports surfaced this month that the U.S. Environmental Protection Agency (EPA) had proposed a significant new use rule (SNUR) for asbestos in June, requiring anyone who wanted to start or resume importing or manufacturing the carcinogenic mineral to first receive EPA approval.

Keep reading... Show less
Animals
Rklfoto / Getty Images

Bipartisan Group of Lawmakers Wants to End EPA’s Cruel Animal Testing

By Justin Goodman and Nathan Herschler

A bipartisan group of lawmakers in Congress recently pressed the U.S. Environmental Protection Agency (EPA) on its "questionable" and "dubious" animal tests. The lawmakers' demand for information on "horrific and inhumane" animal testing at the EPA comes on the heels of a recent Johns Hopkins University study that found that high-tech computer models are more effective than animal tests.

Keep reading... Show less
Sponsored
Climate
Wikimedia Commons

Strongest, Oldest Arctic Sea Ice Breaks Up for First Time on Record

The Arctic is warming at a rate twice as fast as the rest of the globe, and now the region's thickest and oldest sea ice—also known as "the last ice area"—is breaking up for the first time on record, the Guardian reported Tuesday.

The breakage has opened up waters north of Greenland that are normally frozen-solid even in the peak of summer.

Keep reading... Show less
Energy
Climate Justice Edmonton

These Giant Portraits Will Stand in the Path of Trans Mountain Pipeline

By Andrea Germanos

To put forth a "hopeful vision for the future" that includes bold climate action, a new installation project is to be erected along the controversial Trans Mountain pipeline expansion route to harnesses art's ability to be a force for social change and highlight the fossil fuel project's increased threats to indigenous rights and a safe climate.

Keep reading... Show less
Sponsored
Popular
A worker inspects recycled plastic in a plastics factory. Getty Images

The Plastic Waste Crisis Is an Opportunity to Get Serious About Recycling

By Kate O'Neill

A global plastic waste crisis is building, with major implications for health and the environment. Under its so-called "National Sword" policy, China has sharply reduced imports of foreign scrap materials. As a result, piles of plastic waste are building up in ports and recycling facilities across the U.S.

Keep reading... Show less
Adventure
Aaron Teasdale

The One Thing Better Than Summer Skiing

By Aaron Teasdale

"There's snow up here, I promise," I assure my son Jonah, as we grunt up a south-facing mountainside in Glacier National Park in July. A mountain goat cocks its head as if to say, "What kind of crazy people hike up bare mountains in ski boots?" He's not the only one to wonder what in the name of Bode Miller we're doing up here with ski gear.

Keep reading... Show less
Sponsored

mail-copy

The best of EcoWatch, right in your inbox. Sign up for our email newsletter!