Pennsylvania “Environmental” Regulator Sues Communities for Trying to Protect Their Environment and Banning Frac Waste Injection Wells

Pennsylvania Dept. of Environmental Protection Sues Towns for Trying to Protect Their Environment by Rural America in These Times, March 30, 2017

Fracking injection wells, which blast millions of gallons of water mixed with chemicals deep underground to expand fissures in the rock, have triggered earthquakes and polluted drinking water in several states. In order to prevent energy corporations from dumping toxic wastewater in their communities, two Pennsylvania townships drafted local constitutions banning the practice.

Providing another example of how far down the corporate rabbit hole state and federal governments have gone, on March 27 the Pennsylvania Department of Environmental Protection (DEP)—the state agency with the mission “to protect Pennsylvania’s air, land and water from pollution and to provide for the health and safety of its citizens”— sued these townships for interfering with the oil and gas industry.

The Pennsylvania Community Rights Network (PACRN) is a statewide, grassroots organization working to elevate community interests above corporate interests by advocating the right to local self-government. According to the group’s website:

The current structure of law in Pennsylvania systematically strips communities of the power to adopt laws to protect their health and safety, particularly when those laws come into direct conflict with corporate decision making. This system thus prohibits communities from banning projects and activities that they consider dangerous and harmful—everything from corporate factory farms to the land dumping of sewage sludge and “hydro-fracking” for natural gas. Unfortunately, Pennsylvania communities have found out the hard way that the existing structure does not provide a remedy for these problems, and that a corporate minority, with the blessing of the state, has almost wholesale control over our communities on almost any issue that really matters.

For 15 years, PACRN has been working alongside the Community Environmental Legal Defense Fund (CELDF)—a non-profit, public interest law firm that provides “free and affordable legal services to communities facing threats to their local environment, local agriculture, local economy and quality of life.” Thomas Linzey, a contributing writer to Rural America In These Times, is the executive director and co-founder of the Community Environmental Legal Defense Fund (CELDF) and serves as the organization’s chief legal counsel.

On March 29, CELDF issued the following press release:

Mercersburg, PA: On Monday, the Pennsylvania Department of Environmental Protection (DEP) issued permits to two polluting corporations. The permits signify the DEP’s approval of Seneca Resources and Pennsylvania General Energy (PGE) injecting toxic frack wastewater into Highland Township (Elk County) and Grant Township (Indiana County).

The permits are in direct violation of democratically-enacted Home Rule Charters in both Townships. The charters were drafted with the help of the Community Environmental Legal Defense Fund (CELDF). They established local constitutions that define not only government structure, but also rights and protections in the communities. Highland and Grant’s charters prohibit the depositing of frack waste as a violation of the communities’ rights to clean air and water. Residents adopted the measures because injection wells threaten drinking water supplies and have caused earthquakes in Ohio and Oklahoma, leading to their shut down.

On Monday, the DEP also sued both Townships, claiming the charters unlawfully interfere with state oil and gas policies.

Let’s be clear: our state agencies, tasked with “environmental protection,” are legalizing harmful activities by issuing permits to corporations with histories of violations. And, they are doing so against the will and sovereign law of the people who live in the community. Equally egregious, those state agencies are now suing communities who dare to stand up to unjust laws that privilege corporate interests above the communities’ health and safety. The meaning of “corporate-state” has never been more clear; it is painfully obvious whose interests our state agencies serve.

Grant Township Supervisor Stacy Long said, “Our community wrote a new constitution, with wide community support and input, to protect our rights and our environment. And now we’ve been sued, not only by a corporation that wants to profit by dumping toxic waste in our community, but also by our own state ‘environmental protection’ agency. Our fight continues, but we also hope that the latest shameful actions by the DEP inspire others to stand with us, and stand up in their own communities, against unchecked corporate and state power.”

CELDF is proud to continue standing with both communities to resist efforts by Seneca, PGE, and the DEP to violate the rights of the people of Highland and Grant Townships.

Part of a larger movement
Pennsylvania residents and their local representatives are advancing Community Rights as part of the broader Community Rights Movement building across the United States. Local communities and state Community Rights Networks are partnering with CELDF to advance fundamental democratic and environmental rights. They are working with CELDF to establish Community Rights and the Rights of Nature in law, and prohibit extraction, fracking, factory farming, water privatization, and other industrial activities as violations of those rights. Communities are joining together within and across states, working with CELDF to advance systemic change—recognizing our existing system of law and governance as inherently undemocratic and unsustainable.

For additional information regarding Grant and Highland Townships, contact CELDF at email hidden; JavaScript is required. To learn about the Pennsylvania Community Rights Network, visit pacommunityrights.org. To learn about the Community Rights Movement, visit www.celdf.org.  

State sues townships that tried to ban injection wells by Marie Cusick, March 29, 2017, State Impact

The Pennsylvania Department of Environmental Protection is suing two rural townships that attempted to block underground disposal wells for oil and gas wastewater.

On Monday DEP approved two new injection well permits in Highland Township, Elk County, and Grant Township, Indiana County. In its public announcement, the agency didn’t mention it was filing a lawsuit against the townships the same day.

DEP spokesman Neil Shader says the department isn’t trying to retaliate against the townships, rather it wants the court to rule on what takes precedence– state law, or the townships’ home rule charters, which explicitly ban injection wells.

“We filed the petitions to get clarity,” says Shader. “We’re just really targeting these specific parts of their home rule charters that deal with the underground injection wells.” [Is he believable? He sounds worse than AER’s “public” relations liars!]

Both local governments have spent years fighting the injection wells. They’ve been counseled by Community Environmental Legal Defense Fund (CELDF)– a group which embraces novel, and largely unsuccessful, legal tactics for communities to fight unwanted projects around the country.

Grant Township Supervisor Stacy Long says “disappointed” is not a strong enough word to describe how she feels about the DEP permitting an injection well in her community. She adds the lawsuit was completely unexpected.

“I find it ironic the Department of Environmental Protection is suing my township because we want to protect our environment,” says Long.

Injection wells are controversial, largely because they’ve been linked to a sharp uptick man-made earthquakes. The DEP says it has imposed special conditions on the permits which will allow them to be operated safely. The state also recently expanded its seismic monitoring network, in an effort to keep a closer eye on earthquake activity.

“Let’s be clear: our state agencies, tasked with ‘environmental protection,’ are legalizing harmful activities by issuing permits to corporations with histories of violations,” CELDF organizer Chad Nicholson said in a statement. “And, they are doing so against the will and sovereign law of the people who live in the community.”

Aside from the two new injection wells permitted this week Pennsylvania already has six active injection wells, according to DEP. Two more have pending permit applications.

HOW ABOUT THIS FOR “CLARIFYING” THE LAW? must read! LAW: Groundwater increasingly at center of legal disputes by Amanda Reilly, E & E News, March 31, 2017

HOLLYWOOD, Calif. — The water flowing beneath the surface of the earth is getting more attention in federal courts.

Groundwater is increasingly at the heart of legal disputes over the extent of the Clean Water Act’s reach and over which entities have water rights, several legal experts said this week at a gathering of water lawyers here in Hollywood.

Two cases decided this month highlight the play that groundwater is getting in litigation. In one, a federal judge ruled that a utility violated the Clean Water Act because of arsenic pollution making its way through groundwater to surface waters of the United States.

In another, a federal appeals court found that a California tribe had a legal right to groundwater below its reservation.

Groundwater is an “extremely important resource,” said Barbara Cosens, a professor at the University of Idaho College of Law, at the American Bar Association’s annual water law conference. “And we developed our laws for groundwater at a period of time when a well … was hand-dug.” After World War II, she said, the country realized that it could tap groundwater for large uses, including oil drilling, electricity, municipalities and irrigation.
“We’ve had to take a body of law that we developed over 100 years for managing conflict over surface water and try to figure out how it applies to groundwater. And that’s a bit awkward,” she said. “Even though they’re connected, they’re physically very, very different.”

One of those awkward areas that has come to the forefront in the last decade has been fitting groundwater into the regulatory regime of the Clean Water Act, said Benjamin Tannen, an associate at Sidley Austin LLP.

A big question courts have had to grapple with over the past 10 years is whether groundwater discharges qualify as a point source or protected water of the United States under the Clean Water Act.

At least two circuit courts have found that groundwater itself is not a point source under the Clean Water Act. But some district courts have found that storage areas that hold waste that could make its way into groundwater are point sources under the law.

District courts, though, are split over the so-called conduit theory, which the Virginia court last week adopted. The theory states that an entity could be found to violate the Clean Water Act if a pollutant is discharged into groundwater from, say, a coal ash pit, and it eventually makes its way to a surface water body that’s hydrologically connected to a regulated water body.

The theory stems from the late Justice Antonin Scalia’s opinion in the infamously muddled 2006 Rapanos decision. In the opinion, which was joined by three other justices, Scalia wrote that pollutant discharges can travel through intermediate conveyances into regulated waters.

“The reason this keeps coming up is if you think about it broadly, there are a lot of, for lack of a better term, pits of waste out there — coal ash basins, hydraulic fracturing wastewater ponds — from which it’s possible that the contents of those pits are moving through the groundwater,” Tannen said.

Tannen, though, argues that Scalia’s Rapanos opinion applied only to discharges from a point source to another point source to a regulated water body.

The conduit theory, on the other hand, deals with pollutants that travel from a point source to a flow — the groundwater — to a surface water body.

In last week’s court decision, for example, Judge John Gibney Jr. of the U.S. District Court for the Eastern District of Virginia found that arsenic from the site of Dominion Virginia Power’s former Chesapeake Energy Center had made its way through groundwater into the nearby Elizabeth River in violation of the law. The judge rejected the company’s argument that there was no hydrological connection between the groundwater below the coal ash storage pits and surface waters (E&E News PM, March 23).

The 9th U.S. Circuit Court of Appeals is currently considering the issue of liability for groundwater discharges. The case, Hawaii Wildlife Fund v. County of Maui, would be the first appellate court decision in several years on the legality of the conduit theory. In the case, Maui argues that a lower court erred in requiring a Clean Water Act permit for wells at the Lahaina water treatment facility. The lower court found that groundwater containing the county’s wastewater eventually reaches the ocean.

For its part, U.S. EPA has consistently said groundwater itself is not a water of the U.S., but it doesn’t have a cohesive view on whether discharges through groundwater are regulated. In the Maui case, the federal government filed an amicus brief agreeing with the lower court that the facility requires a Clean Water Act permit because the discharges stem from a point source — injection wells — and make their way to U.S. coastal waters.

The 9th Circuit has yet to schedule oral arguments in the case. Upholding the conduit theory could have big implications, Tannen said. If groundwater is “clearly regulated under federal law, then environmental groups can start bringing citizen suits — as they’ve already done — but if there’s clear regulation here, then they have more clear standing to do that,” he said.

‘New chaos’
Groundwater was also at the center of a landmark decision this month involving the Agua Caliente Band of Cahuilla Indians’ rights to water in Southern California’s arid Coachella Valley. The 9th Circuit decision was the first controlling opinion that extends to groundwater the federal “reserved rights” doctrine, which says the United States intended to reserve water for tribes when it established reservations to the extent necessary to accomplish the purpose of the reservation (Greenwire, March 8).

The decision is likely to lead to tension between states and the federal government, legal experts predicted this week. “Many states don’t believe there is a federal reserved right to groundwater,” said Nathan Bracken, a partner at Smith Hartvigsen.

Michelle Bushman, legal counsel for the Western States Water Council, said the court decision plays into a fundamental disagreement over the role of groundwater in the reserved rights doctrine. From a state perspective, she said, the 1908 opinion that established the doctrine didn’t mention groundwater precisely because the Supreme Court didn’t mean for water underneath the surface to be included in reserved rights. “From the 9th Circuit’s perspective, it was completely opposite,” Bushman said. “The omission of that is not a barrier to including groundwater as a federal reserved water right.”

What’s still unknown is how tribes in the East — which operate under different water rights regimes — or how federal agencies such as the Forest Service will interpret the decision, Bushman said. The ruling “creates new chaos in the system,” she said.

The case is likely to be appealed to the Supreme Court.

Cosens said the tensions around groundwater mean negotiations and settlements — instead of litigation — might be the best solution. [For industry and corrupt governments and their agencies?]

“When it comes to groundwater,” she said, “it might be a good idea to sit down and talk first.”

While battles over groundwater play out in lower courts, the Supreme Court is also hearing Mississippi’s complaint that Tennessee is stealing its groundwater. Mississippi claims that Tennessee’s Memphis Light, Gas and Water has for years been taking too much water from the Sparta Sands aquifer located beneath both states.

The case is in the hands of a special master who was appointed by the Supreme Court. If Mississippi wins, it could be the first time the Supreme Court divvies up water from an aquifer between two states. [Emphasis added]

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