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Dispute pits small community against large gas driller

MARION CENTER — A local aquatic ecosystem that supports a host of creatures and is linked to water supplies for hundreds of its neighbors will soon have its day in court.

Residents says the Little Mahoning Creek watershed in Indiana County is threatened by frackwater injection activity in the area, while a public interest law firm seeks to represent the environment itself.

As officials in Grant Township, Indiana County, head to court over a wastewater injection ban they enacted in June, legal representatives on both sides of the fight will debate which is more important: the freedoms of an energy corporation that, by law, is entitled to the same civil rights allowed an individual, or the rights of a community to have a healthy, unsullied environment.

On June 3, the Grant Township supervisors unanimously approved an ordinance — a “Community Bill of Rights” — that would ensure potentially hazardous frackwater from an injection well proposed three months earlier by Warren-based Pennsylvania General Energy never makes it into the Little Mahoning. The Mercersburg-based Community Environmental Legal Defense Fund, a public interest law firm, helped supervisors draft the ordinance.

The group also aided Pittsburgh in its fracking ban.

The bill of rights was a way for a small township to exert some form of local control — a stopgap measure to keep frackwater injection plans from moving forward.

In August, Pennsylvania General sued to overturn the ban, seeking a preliminary injunction against the ordinance. A ruling will likely be handed down in January.

The environmental group intervened in Pennsylvania General Energy Co. v. Grant Township in mid-November on behalf of the watershed itself, opining that the species that live in the watershed, as well as the creek’s community caretakers, should have a voice.

Corporations having human rights is a concept that dates back to the mid-19th century.

The U.S. Supreme Court decided that, as corporations are comprised of people, those people should be allowed their constitutional rights when acting collectively. But the Little Mahoning Creek watershed denizens aren’t allowed those same rights by law.

The outcome of this case could be the first step in changing that, community members feel.

“What’s fascinating is that the ordinance not only denies corporate personhood … but also that Grant Township has recognized nature as having personhood aspects,” said Thomas Linzey, the environmental group’s executive director. “It’s a brand new way of doing environmental protection. The old way has failed in protecting these types of communities.

“In fact, it becomes even more ironic because, in this particular case, Pennsylvania General Energy’s claims are based on corporate personhood.”

Pennsylvania General also argues that the ordinance defies the U.S. Supremacy Clause of the U.S. Constitution, which keeps locally enacted laws from overriding federal statutes. In this case, both sides claim they’re being trampled by the other.

Related: Eminent domain fight looms for pipeline.

‘Unlawful’ ordinances?

Linzey said around 30 municipalities across the country have passed ecocentric ordinance provisions similar to the one adopted in Grant Township.

Their proliferation flies in the face of the U.S. and state constitutions, said Kevin Moody, vice president of the Wexford-based Pennsylvania Independent Oil & Gas Association, which provides legal assistance for more than 950 oil and natural gas producers, drilling contractors, manufacturers and distributors in the state.

The oil and gas group has petitioned to become a party to the case, although a judge has yet to OK the motion.

“We’re concerned with these, because we think these kinds of ordinances are blatantly unlawful,” Moody said. “In Grant Township, the only target is wastewater. … There’s a whole lot of rights granted to the citizens and the residents, and these ordinances go way beyond stopping wastewater.”

He said Pennsylvania General’s motion to reverse the ban is backed by a 2008 Commonwealth Court case, in which East Brunswick Township defended a similar ordinance it had passed in 2006. That law banned the deposit of sewage sludge as fertilizer by corporations, but allowed it for individuals who obtain a township permit and otherwise comply with the ordinance. Although the issues in question aren’t wholly aligned, the courts determined that the township’s argument goes against the fundamental structure of local government.

“First and foremost, we are not prepared to reject one of the most basic precepts of governmental structure in this commonwealth, i.e., that ‘local governments are creatures of the legislature from which they get their existence,’ ” the court is cited in the case document.

Outgoing Gov. Tom Corbett, then the state attorney general, argued it was an “unauthorized local ordinance,” because the township lacks the authority to regulate the sewage sludge outside of already established state statutes like the Solid Waste Management Act. The court also agreed that chapter three of the state’s Agriculture Code, commonly known as Act 38, invalidates ordinances that interfere with normal agricultural operations.

Related: National environmental groups want to join Denton fracking fight.

Secession statement?

Linzey was listed as a respondent in the case, although the environmental group was not involved.

“Linzey argued that the Pennsylvania Constitution recognizes a right to self local government — that local government can determine how to govern themselves,” Moody said. “They’re basically seceding from the union in the U.S. … The state Constitution and federal Constitution — they all still trump home rule charters. There’s no basis for these arguments. None.

“These people are buying a lot of litigation at the cost of their townships,” he continued.

As reported by The Indiana Gazette, the township is expected to pay between $5,000 and $8,000 to the environmental group for expenses it will incur in taking the case.

“There’s a possibility for personal liability for these (Grant Township) officials, and we feel there’s a real possibility of criminal liability,” he said.

Moody said his group has considered reaching out to district attorneys to review the case, citing abuse of office statutes in the state crimes code.

After the East Brunswick Township ruling, Linzey withdrew his name from the case, according to Moody.

“That says a lot to me,” he said.

Following the decision to retain the defense fund in late August, township Supervisor Chairman Fred Carlson told the Indiana newspaper that the township board will stick to its guns.

“The township is going to be fairly safe,” he said. “My personal opinion is that we go through with the ordinance. I cannot see us trying to stop this (lawsuit) some way or another.

“I’m willing to fight for the rights of Grant Township to keep this well out of here.”

The case has yet to go to trial.

It is currently in mediation in Pittsburgh federal court.

Related: Fracking industry suing over drilling bans

Making a difference

It was the activism and support of concerned community members that spurred township supervisors to adopt the bill of rights ordinance that’s currently under fire.

“There is risk of soil and water contamination with every injection well and injection wells are very new to Pennsylvania, as its geology wasn’t considered fit to house these incredibly toxic substances in a permanent manner,” Stacy Long, president of local environmental group East Run Hellbenders, said via electronic message.

The group, which has requested to intervene in the case alongside the watershed, works to protect the ecosystem supported by Little Mahoning Creek, which is considered a “prize” of Indiana County, representatives said.

The group’s founder, Judy Wanchisn, has a name for the wide, rural sprawl through which Little Mahoning Creek runs. She calls it “God’s country.”

The creek, categorized by the DEP as a high-quality cold-water fishery, is home to several aquatic species — freshwater mussels, fish and aquatic insects, as well as the eastern hellbender salamander, which relies on clean, well-oxygenated water to survive, Long said.

More than 19 miles of the middle and upper reaches of the Little Mahoning are stocked with trout for a more than

4-mile fly-fishing zone, while the lower 12 miles of the creek are home to smallmouth bass.

“The (Environmental Protection Agency) and the (state Department of Environmental Protection) do not provide adequate protection for private citizens,” Long said. “This means agencies can place Pennsylvania citizens at risk by permitting toxic waste dumps to the sole benefit of corporations.”

Pennsylvania General’s permits allow the company to dump seven days a week, 12 hours a day, with an allowance of 30 barrels per month, Long said. The drillers’ proposed well site is along East Run Road, on farm property owned by the family of Marjorie Yanity, after whom the farm is named.

Data collected by NPR StateImpact Pennsylvania found that PGE is one of the state’s top 10 environmental offenders, with 113 reported DEP violations between the company’s 149 active injection wells and fines totaling more than $120,000. Atop that list is Chesapeake Appalachia LLC, with 422 violations across 793 active wells and nearly $1.5 million in fines.

‘Adventure into the unknown’

With no public water resources, every resident in Grant Township relies on a private well or spring for drinking water, Long said. Although environmental oversight exists, it’s no guarantee that residents’ water supplies won’t become contaminated.

For Grant Township, the stakes — which go beyond just keeping wastewater out of a local creek — are very real.

But Linzey said the municipality’s new ordinance is riding the crest of a paradigm shift in environmental protection laws.

In 2008, Ecuador amended its national constitution to include a “rights of nature” provision, he said.

Moody said he feels the township residents were sold a “bill of goods” by the defense fund, adding there are many other — certifiably legal — ways to change corporate-centric legislation.

“Other state constitutions don’t permit what they want to do, and they acknowledge that,” he said. “If (residents) want to petition their state governments or whatever to change these laws — this is not the right way to do that.”

But the struggle is far from over, and Linzey feels the outcome could set a precedent for environmental regulation.

“It’s an adventure into the unknown,” he said.

Legal representatives from Pennsylvania General Energy and the Grant Township supervisors declined to comment on this story, as litigation continues.