PADEP Sues Townships Over Fracing Bans

On the same day it issued permits authorizing two energy companies to dispose of oil and gas wastewater in underground injection wells, the Pennsylvania Department of Environmental Protection (PADEP) filed a petition for review in Commonwealth Court challenging two townships for attempting to restrict unconventional gas operations.  In asking the court to enjoin the townships from enforcing their home rule charters and seeking declaratory relief, PADEP asserts that state law preempts townships from regulating oil and gas well activities that are within PADEP’s regulatory province.

Grant Township (in Indiana County) and Highland Township (in Elk County) have been waging war with Pennsylvania General Energy (PGE) and Seneca Resources, respectively.  Supported by the Community Environmental Legal Defense Fund (CELDF) which advocates notions of Community Rights and Rights of Nature of law that would have local law trump state law, these townships have enacted ordinances purporting to ban oil and gas disposal activities.  After federal courts declared the ordinances invalid, the township enacted home rule charters with similar restrictions.  The townships battled PGE and Seneca in the companies’ efforts to obtain permits from USEPA and PADEP.  Upon deciding that both companies satisfied the regulatory criteria to dispose of wastewater in underground injection wells, PADEP issued permits on March 27, 2017.  In a press release, Acting Secretary Patrick McDonnel explained “After a thorough review, DEP determined that both applications met all regulations, are sufficient to protect surface water and water supplies, and would abate pollution.”  The press release did not mention the lawsuits against the townships filed the same day.

CELDF has tried to spread its message beyond Pennsylvania but has been thwarted by courts in Ohio and New Mexico.   The authors of the StateImpact article cited above, summarize CELDF’s strategic efforts aptly: “These efforts deliberately conflict with the reality of the legal structure—which often gives power to state and federal regulators. That’s why both industry and environmental observers see CELDF as more of a political movement than a sound legal strategy.”

Governor Wolf presumably has concluded that the political movement embraced by the township must be stopped.  While the energy industry may not often agree with Governor Wolf, in this case, oil and gas operators no doubt would support if not applaud PADEP for taking the townships to court.

Stephen Smith focuses his practice on environmental and energy-related matters including regulatory counseling and litigation, administrative law, governmental affairs and lobbying. He represents clients before federal and state courts and administrative agencies. He provides client counseling and advice on compliance, permitting and agency communications as well as business transactions.
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