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The residents of Grant Township, Pennsylvania, were worried about Little Mahoning Creek, a picturesque trout stream best fished in the spring when the water runs fast.
The Pennsylvania General Energy Company had acquired a federal permit to drill an injection well down 7,000 feet about seven miles from the creek to dispose of wastewater from its natural gas hydraulic fracturing operations.
Fearing the operation would harm the Little Mahoning watershed, the town’s supervisors last year passed a “community bill of rights” that blocked the well, stripped the company of its right to inject wastewater underground, and declared that the state had no jurisdiction in the matter.
The ordinance, they openly acknowledged, was likely to be challenged, and defending its legality would be difficult.
Driven largely by opposition to hydraulic fracturing, commonly known as fracking, communities across the United States have passed or are considering measures to assert their right to stop projects with potential to harm local environments – even when the ventures fall squarely under state or federal jurisdiction.
Behind a number of the protests, including the one in Grant, is a little-known activist group, the Community Environmental Legal Defense Fund. In 18 communities across six states the fund has convinced towns, villages or counties to challenge state and federal authorities – and even the U.S. Constitution.
“Our belief is that these communities don’t have a fracking problem, they have a democracy problem,” said Thomas Linzey, the Pennsylvania-based attorney who founded the fund. “Our premise is that you can’t win against the oil and gas industry using the existing legal structure, so the structure needs to be changed.”
Fracking, which extracts oil or gas from rock formations by injecting a high-pressure mix of water, sand and chemicals into wells, has helped lift domestic production of natural gas by 35 percent since 2005 and oil by 45 percent since 2010. But it has also been linked to a rise in seismic activity in some places, and triggered fears about water and air pollution.
States have reacted differently to local opposition: Vermont and New York passed sweeping state-wide moratoriums on fracking over the concerns, while Texas and Oklahoma – whose economies rely heavily on the oil and gas industry – this year passed laws forbidding local fracking bans.
For Linzey, all four examples illustrate the same problem: a lack of authority for affected communities to decide their own fates.
So far, five of the communities that have adopted CELDF-written ordinances, including Grant Township, have had them challenged in court, and one decided to repeal its measure after a federal judge ruled against it. The other communities say they don’t expect to win.
The fund’s rebellious approach has drawn fire from the oil industry, legal experts and established environmental groups. And the criticism is likely to grow as cash-strapped local jurisdictions find themselves on the hook for defending ordinances in court cases they have little chance of winning.
But Linzey says his goal is not to write local laws that are popular, or stand up in court, but rather to trigger a public debate about community rights to local self-government – even if it means a community ultimately falls into financial ruin.
“If enough of these cases get in front of a judge, there is a chance we could start to have an impact within the judiciary,” said Linzey. “And if a town goes bankrupt trying to defend one of our ordinances, well, perhaps that’s exactly what is needed to trigger a national movement.”
CELDF has about 10 staff members spread across several of the states where it is active, and also relies on lawyers volunteering their time. The group has never won a case that went to court.
The city of Lafayette, Colorado, has already paid some $60,000 so far defending its 2013 CELDF-authored community bill of rights in court, knowing the effort is a form of legal disobedience with little hope of yielding a courtroom win.
“The idea is to push this issue into people’s consciousness,” said Merrily Mazza, a council member in the city of 27,000 people.
“FLATLY UNCONSTITUTIONAL”
About 400 U.S. municipalities have sought to pass bans on fracking over the past ten years, mainly through legal moves like zoning regulations that have been easily overturned, according to Food and Water Watch, a non-profit organization.
But CELDF’s strategy of explicitly flouting existing legal structures has made the group one of the fracking industry’s most aggravating opponents, according to Kevin Moody, chief counsel for the Pennsylvania Independent Oil and Gas Association. He calls the fund’s hard-line view of local self-government “ridiculous,” but capable of delaying projects and making them more costly.
“If they want to have this debate, have it in a political arena,” Moody said. “Don’t enact ordinances that are blatantly unlawful, tie up local townships, expose them to liability, and tie up companies.”
Linzey’s approach has also not earned him many friends among established environmental groups, big donors, or legal experts. The organization operates on a relatively small annual $800,000 budget, funded by a handful of left-leaning foundations, including the Park Foundation and the Heinz Endowments, as well as by private donors whose names it withholds.
“I appreciate their opposition to corporate power and their defense of the environment, but it is flatly unconstitutional,” says Kent Greenfield, a professor of law at Boston College. He said if communities could reject constitutional rights, nothing could stop them from re-segregating schools, for example.
The Washington-based Natural Resources Defense Council said that while it shares CELDF’s goal of combating fracking, it considers CELDF’s style too risky for local communities enacting the ordinances.
In Mora County, New Mexico, community leaders this year voted to repeal their CELDF-authored anti-fracking ordinance after a federal court judge ruled against the county in a lawsuit brought by an oil company and landowners.
“We weren’t comfortable using our county as the test case to try to overturn two centuries of law,” said Mora County Commissioner Paula Garcia.In Grant Township, residents so far have remained willing to fight. The community has spent just a few thousand dollars of its annual $250,000 budget defending its CELDF-drafted community bill of rights. But it may have to spend more.
Last August, PGE took Grant Township to court, arguing that the measure was unconstitutional and causing it financial harm by delaying a federally-permitted waste injection well.
“If PGE wants to bankrupt this township, that’s fine, that’s just the way it’s going to be,” said Jon Perry, 59, one of three township supervisors. “I’m not sure that will look very impressive on their resume.”
PGE did not respond to a request for comment.