This story originally appeared on StateImpact Pennsylvania.
A Western Pennsylvania township that is seeking to prevent the construction of a frack-waste injection well by asserting home rule suffered its latest blow when a federal judge ordered it to pay almost $103,000 in legal fees to the company that wants to build the well.
Judge Susan Paradise Baxter of the U.S. District Court for Western Pennsylvania ordered Grant Township in Indiana County to pay the costs, saying that the township, not its adversary, Pennsylvania General Energy Company, had prolonged a legal fight over whether the well could be built.
In a 10-page opinion issued on April 1, the judge also said PGE had clearly prevailed in a suit that challenged the constitutionality of a Community Bill of Rights Ordinance which the township adopted in 2014 in an effort to assert a legal right to block the injection well.
After the court ruled the ordinance unconstitutional in 2015, the township adopted its Home Rule Charter, which includes a provision that residents have a right to “be free” of activities that risk harming water, soil or air quality such as a well that collects oil and gas waste.
In her ruling, Judge Baxter also cast doubt on the township’s adoption of the Home Rule Charter.
“Even after the ordinance was adjudged pre-empted by state law, Grant Township sought to make an end-run around that judicial determination by amending its form of government and adopting the pre-empted and constitutionally deficient provisions in the form of a Home Rule Charter,” she wrote.
She also noted that PGE had offered to accept only about one-sixth of its actual legal costs. The company did not immediately respond to a request for comment.
The ruling is a new setback to Grant Township, and to the Community Environmental Legal Defense Fund, a nonprofit that has advised Grant and about 100 other Pennsylvania municipalities on adopting local rules that are designed give them control over oil and gas development in their jurisdictions.
Stacy Long, vice chair of the township’s board of supervisors, said the board has not decided whether to appeal the latest ruling, but she said the community of “fewer than 750” people can’t afford to pay the bill, as ordered by the court.
“This is not great, this is a terrible thing to put a community through,” she said.
Long argued that the Home Rule Charter gives the township the right to resist oil and gas development, but she acknowledged that position is not shared by the Department of Environmental Protection, which is suing the township in an effort to legalize the injection well.
She said that the rulings against the constitutionality of the local measures are ignoring local rights in favor of corporations and state government.
“Whose constitutional rights are bigger, greater, carry more weight?” she asked. “Is it a corporation’s right to come in and do whatever the hell they want? Or is it ‘we the people’ with inalienable rights to health, safety and welfare?”
Despite the order to pay a sum she said is beyond the township’s means, Long defended the actions it has taken to defend what it sees as its local rights.
“If we had not done everything we have done in the last five years, the injection well would be in our community, I have no doubt,” she said. “We have always feared the injection well a thousand times more than a lawsuit, and money that would be due.”
Chad Nicholson, a community organizer with CELDF, accused the oil and gas industry of increasing pressure on communities like Grant amid what he said was a stronger assertion of local rights in the face of oil and gas development.
“They are seeing communities stand up to the industry in ways that they didn’t in the past,” he said, adding that most communities that have adopted such an ordinance have not been challenged legally.
In the case of Grant Township, PGE is trying to warn other municipalities not to resist the industry, Nicholson said.
“They are trying to make an example of Grant Township, to punish them so that this does not spread,” he said.
Towns need tools like the ordinance and the home rule charter to establish their property rights, Nicholson said. If upheld, those measures would provide stronger local protections against the industry than the exercise of zoning rights, as affirmed by the Pennsylvania Supreme Court in its landmark 2013 ruling on Robinson Township.
The high court said then that townships can determine where oil and gas facilities are built, striking down parts of the controversial and wide-ranging Act 13 on gas development, which became law in 2012.
But Robinson only confers local control over where, not whether, oil and gas facilities can be built. That’s why stronger measures such as the Home Rule Charter are needed, and why CELDF will continue to advocate for such measures, Nicholson said.
“Our analysis that communities have a constitutionally protected right to defend themselves stands, and that’s what we will continue to fight for,” he said.
But Rich Raiders, a land-use attorney whose clients include those fighting the Mariner East pipelines, argued that tools such as Home Rule represent a community overreach that is destined to fail.
While the Robinson ruling affirmed local rights to zone for oil and gas development, it also said that all parties must be accommodated, and that’s at odds with Grant’s assertions of self-government, Raiders said.
Home Rule Charters offer some measure of local control, but that doesn’t include ignoring the state Supreme Court or ignoring the General Assembly, he said.
“You just can’t say as a local government, ‘No, we’re not going to do this,’” Raiders said.