Pa. judge throws out ban, sidesteps ‘rights of nature’

By Ellen M. Gilmer | 10/16/2015 07:45 AM EDT

A federal judge in Pennsylvania this week struck down a local government’s efforts to block oil and gas wastewater disposal within its borders.

A federal judge in Pennsylvania this week struck down a local government’s efforts to block oil and gas wastewater disposal within its borders.

The U.S. District Court for the Western District of Pennsylvania on Wednesday invalidated several provisions of Grant Township’s "community bill of rights" — a 2013 ordinance passed by township supervisors seeking to ban injection wells.

Magistrate Judge Susan Paradise Baxter ruled that the provisions of the bill of rights that ban injection wells and attempt to penalize violators are unenforceable because they exceed the township’s authority.


"There is no state authority expressly granting a municipal government or its people the authority to regulate the depositing of waste from oil and gas wells or to invalidate permits granted by the state or federal government," Baxter wrote. "Any provision enacted without underlying legislative authority is invalid and unenforceable."

Grant Township’s authority is limited in part by its status as a "second-class township" under Pennsylvania law, which allows it to exercise only those powers that have been specifically granted by the General Assembly. The township is set to vote in November on whether to seek "home rule" status and take on additional powers.

The court also noted that the township must allow legitimate activities to occur somewhere within its borders. While a landmark 2013 state Supreme Court decision protected local governments’ right to use their zoning powers to regulate well locations, the decision does not protect outright bans.

Corporations are still people

Finally, the court struck down a provision of the bill of rights that purportedly strips corporations of their constitutional rights if they attempt to circumvent the injection well ban.

"Corporations that violate this Ordinance, or that seek to violate this Ordinance, shall not be deemed to be a ‘person,’ nor possess any other legal rights, privileges, powers, or protections which would interfere with the rights or prohibitions enumerated by this Ordinance," the township’s bill of rights says.

Grant Township lawyers have argued that the entire doctrine of corporate rights violates the people’s right to self-governance. Further, they argued, the right to self-governance includes the right of the people to challenge and change their system of government when it is violating their rights.

Baxter rejected the argument, finding that the township had not provided any case law or constitutional provisions that supported its unconventional claims, and that state law expressly protects the rights of corporations to the "legal capacity of natural persons."

Thomas Linzey, the Community Environmental Legal Defense Fund (CELDF) attorney who helped draft the bill of rights, told EnergyWire in an email that the court effectively sidestepped the broader constitutional question of corporate rights by focusing instead on pre-emption by state law.

Under the court’s order, Grant Township may no longer enforce the contested provisions of the bill of rights, and Pennsylvania General Energy Co. — the plaintiff in the lawsuit — can continue seeking state permits for a disposal well.

"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," CELDF said in a statement.

Rights of nature

The federal court’s decision also carefully ducked the controversial issue of "rights of nature."

CELDF made headlines last year when it encouraged municipalities to draft measures that gave legal rights to natural bodies such as rivers, trees and ecosystems. Grant Township’s bill of rights included those protections.

Pushing the issue, environmental lawyers attempted to intervene in the lawsuit on behalf of the Little Mahoning Creek watershed, arguing that it had a major stake in the outcome and deserved legal standing. Linzey acknowledged that the move was unconventional but argued that traditional environmentalism simply isn’t working (EnergyWire, Jan. 7).

"It’s past due [for judicial consideration]," he said earlier this year. "Rights of nature has an interesting pedigree and legacy in the United States. It’s not as crazy as it sounds."

But the judge declined to reach the issue in Wednesday’s ruling. She found that the watershed and its partner intervenor, the East Run Hellbenders Society, had not demonstrated that their interests were not already adequately represented by Grant Township.

"As to the issue of whether the Little Mahoning Watershed, an ecosystem, has standing under the law, no determination need be made here," Baxter wrote. "Clear and convincing evidence has not been produced to show that [the township’s] vigorous defense of the Ordinance, the terms of which protect the Watershed in all of its locations, do not line up precisely."

CELDF said yesterday that the ruling will spur further organization among Pennsylvania townships and organizations seeking to give local governments more control over development.

"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," the group said in a statement. "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."