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Mar 6, 2020 Updated Mar 10, 2020
PITTSBURGH — A state appeals court has turned aside an appeal by Pennsylvania Department of Environmental Protection and left standing a home rule charter adopted by a northern Indiana County municipality in a bid to control its own local environment.
The Pennsylvania Commonwealth Court ruled Wednesday against the DEP’s petition to invalidate the Grant Township home rule form of government. The judges called the effort a “collateral attack” and said it was “without merit.”
The township has been backed for several years by The Community Environmental Legal Defense Fund (CELDF) in its mission to halt the planned construction of an injection well, using a spent natural gas well near East Run for the disposal of fluids and other waste drawn from gas well drilling and exploration by Pennsylvania General Energy (PGE). The ruling, according to CELDF community organizer Chad Nicholson, “allows Grant Township to argue that local governing authority is necessary to protect the community’s constitutional rights in the face of harmful state oil and gas policies.” Grant Township, a community of about 700 with no commercial properties within its borders, has fought the PGE plan for the fracking water disposal site since 2014. CELDF attorneys defended the township against lawyers for DEP in a hearing Oct. 4 before a panel of Commonwealth Court judges in Pittsburgh.
Township residents voted in 2015 to adopt a home rule charter form of local government which carried a “community bill of rights,” drafted with assistance of CELDF.
The bill of rights asserted that the township has final control over use of local land, but the DEP charged that the local ordinance usurped the state’s authority to grant permits for allowed uses of land. DEP brought the township to court, charging that the local charter interfered with its ability to enforce state oil and gas policy.
DEP lawyer Rick Watling asked the judges to rule that the ban on oil and gas waste fluid disposal in Grant’s Home Rule Charter is unlawful because Grant only has police powers to limit land uses through its zoning powers (under the Municipalities Planning Code). The DEP’s position is that its guiding laws, in this case the state Gas and Oil Act, have the upper hand over regulations imposed at the local level.
“If Grant wishes to attempt prohibiting oil and gas waste fluid disposal within the township, it must use only lawful mechanisms in this effort, and it did not do so in this case,” according to a DEP summary of its position.
Watling asked the judges to dismiss the township’s counter claims in the case. Karen Hoffman, a Philadelphia-based attorney representing Grant Township and its board of supervisors, argues that home rule invokes state statues as its basis of authority.
“We’re not saying home rule is an unfettered authority, the basis for this particular charter is the Pennsylvania Environmental Rights Amendment, which is enshrined in Article 1, which is the source of all the fundamental rights in the constitution and cannot be limited by any other sections of the constitution,” Hoffman said following the October hearing.
“Grant Township realized that the DEP has no ear for hearing that a radioactive frack waste dump is a dangerous and bad project for a rural, poor community like ours,” Grant Township Supervisor Vice Chairwoman Stacy Long said in a news release issued Thursday by CELDF. “DEP’s job is to permit a certain amount of damage, and then try to mitigate it after the damage occurs. That is unacceptable to the people of this community, and so we said ‘NO.’ And then we got sued by our own DEP. We’re glad our case continues.”
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