On October 24th, 2012, several agents from Pennsylvania General Energy, an oil-and-gas exploration company, met privately with local officials from the rural western Pennsylvania community of Grant Township. Fracking was booming in Pennsylvania, and PGE had been trucking tens of thousands of gallons of fracking wastewater to faraway injection wells in Ohio. Developing an injection well somewhere in Pennsylvania could save the company around $2 million a year, and Grant Township, a swath of woods and hayfields slightly larger than Manhattan and populated by a mere 741 people, seemed like an especially good spot.
Most of the meeting’s attendees – which included the three Grant Township supervisors, a rep from the local state senator’s office and an official from the county’s office of planning and development – will not speak about the event. But about 10 months later, one of the supervisors passed along a notice to a retired elementary-school teacher named Judy Wanchisn. In lettering so small “you need a magnifying glass to read,” says Wanchisn, the notice declared that the U.S. Environmental Protection Agency “plans to issue an Underground Injection Control (UIC) permit to PGE . . . to construct and operate one class II-D brine disposal injection well.” Wanchisn had no idea what that meant, but she could tell it was bad.
Wanchisn, now 74, lives about a mile from the proposed injection-well site, in a modest white ranch house overlooking East Run, a creek that’s popular with anglers and home to an ancient salamander species called the hellbender. She was born and raised in Grant Township and taught elementary school for 20 years in the neighboring community of Purchase Line. When she received the EPA announcement, she was enjoying her retirement, spending days with grandkids and girlfriends, gardening and taking care of her husband, who has a heart condition. But she soon found herself spending more time in front of the computer, researching injection wells.
Fracking involves sending millions of gallons of chemical-laden pressurized fluid into deep layers of rock, creating fractures that release trapped oil and gas. In the past decade, Americans have been enjoying the cheap domestic energy resulting from the fracking boom, which now produces two-thirds of the country’s natural gas and half of its oil. But fracking has also created its share of unwanted byproduct. Some 36,000 oil-and-gas wastewater-injection wells – disposal sites for the fluid that seeps to the surface after a well is fracked – lie sunk across our land. Pennsylvania presently has only eight active injection wells, but several are in the process of being permitted. And as the incredibly gas-rich Marcellus shale layer is developed, along with another massive shale layer a few thousand feet beneath it called the Utica, there will surely be more to come.
Fracking wastewater is a toxic brew containing some of the carcinogenic and flammable chemicals left over from the fracking process, as well as heavy metals and radioactive elements like radon and radium that seep out of deep rock layers. Between 2005 and 2014, America pumped approximately 189 billion gallons of fracking wastewater down injection wells, the equivalent of letting the full force of Niagara Falls gush directly into the earth for 14 and a half days. “They started drilling without having any idea what they are going to do with the waste,” says Penn State ecologist William Hamilton, who writes a blog about western Pennsylvania. “To me, pumping it into the ground seems like a very foolish way to dispose of a toxic material. There are going to be gigantic, unknown and long-term consequences to this.”
Oil-and-gas companies in Pennsylvania once delivered fracking wastewater to sewage-treatment plants. But in the summer of 2008, residents began noticing that their water had developed a funny taste and their dishwashers were malfunctioning. A steel plant reported the water was corroding its machinery. Last year, the EPA banned the practice. The majority of fracking wastewater produced in Pennsylvania is now treated in industrial facilities and reused in fracking wells. Eventually, the mixture becomes too toxic to handle, at which point it is pumped into an injection well. In 2011, a well operated by EXCO Resources oozed waste for four months into a remote forest in central Pennsylvania. A landmark study published last year in Environmental Science & Technology, co-authored by scientists at the U.S. Geological Survey, determined that a West Virginia injection-well site was “impacting the stream that runs through the area.” USGS studies have also linked injection to earthquakes in Ohio, Arkansas and Oklahoma.
Essentially, Wanchisn learned, the ground beneath her would be used as a vast toxic-waste storage locker. PGE planned to inject 42,000 gallons of fracking wastewater a day into a layer of rock 7,500 feet beneath the ground, where it was to remain for eternity. The pumping would continue 24 hours a day, every day, for half a generation or more – Wanchisn’s teenage grandchildren could be married with children, and PGE would still be injecting fracking waste.
In October 2013, about 30 residents raised safety issues with the EPA at a public hearing in Grant Township’s small municipal building. The president from the local chapter of the League of Women Voters, Sherene Hess, worried about the durability of the well’s cement casing, along with the rock layers’ ability to hold the waste. Others expressed concerns about seismic faults and the toxicity and radioactivity of the fracking wastewater. Plans to monitor the well were lacking, and there were unresolved issues concerning the hazards of transporting waste to the site. “What we don’t know about injection wells,” Hess told the assembly, “may, in fact, hurt us.”
After the meeting, Wanchisn assumed the system had worked: The community had presented a well-researched array of scientific facts and formally filed its complaints. How could the federal government’s environmental watchdog permit a well in a town that widely opposed it? For five months, Wanchisn heard nothing. Then, in March 2014, she received a letter from the EPA. The injection well had been approved. “We were novices,” she says. “We thought someone was going to save us, but what we hadn’t yet realized was that no one was going to save us but ourselves.”
Despite calls from Donald Trump and his EPA administrator, Scott Pruitt, to roll back “out of control” environmental regulations, in reality, the federal government rarely blocks projects outright. Battles tend to unfold within the regulatory system once a project gets the green light – a community marks out a certain threshold for pollution and tries to ensure the polluting industry stays below that mark. When it comes to fracking, the EPA has been especially business-friendly, declaring injection “a safe and inexpensive option for the disposal of unwanted and often hazardous industrial byproducts,” and has approved thousands of wells across the country.
“Americans are often under the belief that the EPA or their local state environmental agency is going to save them from environmental pollution, and that is simply not the case,” says Leila Conners, a documentarian whose 2016 film, We the People 2.0, examines how corporations undermine American democracy. “What people have to realize is that they are participating in a system that is not working. Across our country right now, companies are allowed to dump their waste pretty much for free.”
But as construction on the injection well neared, Wanchisn and the other Grant Township residents began to wonder why they had to accept the EPA’s ruling at all. With the help of outside advocates, the small community landed upon a radical strategy: It adopted an ordinance that granted residents the right to local self-government, essentially seizing the power to bypass the EPA. According to the new laws of their renegade township, not only could humans defend themselves against PGE, but so too could the streams, the salamanders, the hemlock trees, the very soil underground. As outrageous as it might seem, the move thrust Grant Township onto the front line of a new environmental movement: It’s the battle to grant legal rights to nature. And amazingly, it appears to be working.
A few hours from Grant Township, in Mercersburg, Pennsylvania, is a small organization called the Community- Environmental Legal Defense Fund. CELDF has a staff of about a dozen and an annual operating budget of just $900,000 (the Sierra Club’s is $100 million). Co-founded in 1995 by an Alabama-born lawyer named Thomas Linzey and his then-partner Stacey Schmader, CELDF began as a traditional environmental firm, helping communities fight toxic projects. But the work was discouraging. CELDF would sue over a problem with a proposal, and the company would submit an amended permit, which was then approved. “We got invited to the White House, and we met Al Gore,” says Linzey. “But all the liberal progressive community cared about was that we were enforcing existing environmental laws. No one seemed to care that the community we were fighting for still got a new toxic-waste incinerator.”
The disconnect led Linzey to recall a landmark 1972 paper he read in law school: “Should Trees Have Standing? Toward Legal Rights for Natural Objects.” “I am quite seriously proposing,” wrote its author, Christopher Stone, “that we give legal rights to forests, oceans, rivers and other so-called ‘natural objects’ in the environment – indeed, to the natural environment as a whole.” Stone defended the theory by urging readers to consider the nation’s dark past: Children as young as eight once worked in American factories; until 1920, women in most states couldn’t vote, serve on juries or sue in court; and 160 years ago, African-Americans were sold on auction blocks. “The fact is, that each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening or laughable,” wrote Stone. “This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us’ – those who are holding rights at the time.”
Under Linzey’s direction, CELDF was transformed into a civil-rights group for the environment. It has since helped about three dozen communities across the country draft laws to grant legal rights to nature. They have fought the oil-and-gas industry, factory farms, sludge haulers and other polluters. The plan, says Linzey, is to inject the idea of rights of nature into the national dialogue by working community by community. The ultimate goal is to work with legislatures to introduce rights-of-nature language into state constitutions and, eventually, the U.S. Constitution.
Wanchisn contacted CELDF in April 2014. Initially, the conversation did not go well. An energetic Pennsylvania organizer named Chad Nicholson explained to her the group’s rights-of-nature mission. “It was like he was talking Greek,” says Wanchisn. “We butted heads.”
But Nicholson also offered insight into Grant Township’s experience with the EPA. “The regulatory system is cooked,” he told Wanchisn. “Its DNA does not allow communities to actually say no to things and protect their environment. Communities are then left arguing over the details of a permit granted to a corporation, but what a permit does is allow a certain amount of illegal activity to go on in the community. A permit is about negotiating the rate of destruction, not stopping it.” The only way to prevent contamination, he said, was to never let the corporation into their community in the first place. Wanchisn liked that approach. She didn’t want a judicious permit; she wanted no injection well. In that case, Nicholson said, this “is not a pollution problem; it is a democracy problem.”
By then, Grant Township had a new lead supervisor, a passionately conservative former coal-company executive named Fred Carlson. “If there’s anyone who should be going along with this thing, it’s me,” Carlson says of the injection well. “But you have to think about the generations to come. And one of the biggest resources that this country has is clean fresh water.” He was eager to work with CELDF, which helped write a community bill of rights that made it illegal within the township to operate injection wells. The ordinance would also give residents the right to local self-government and grant “natural communities and ecosystems within Grant Township, including . . . rivers, streams, and aquifers . . . the right to exist, flourish, and naturally evolve.”
On CELDF’s recommendation, Wanchisn, along with her eldest daughter, Stacy Long, and a family friend, founded an environmental organization called the East Run Hellbenders Society. They went door-to-door explaining why the ordinance was the only way to stop the injection well. “It didn’t matter if they were Democrats or Republicans,” says Wanchisn. “People didn’t want anyone messing around with their water. They understand ‘You poison my water and I don’t have a home.’ ”
For the Pennsylvania oil-and-gas industry, the ordinance was a call to war. PGE sent a team of lawyers from Pittsburgh to the June 2014 township meeting where the ordinance was put to a vote. This time, more than 50 people showed up, many of them spilling out of the tiny municipal building into the parking lot. “PGE does not want to fight,” the company’s attorney, Blaine Lucas, told the crowd, urging a rejection of the ordinance. “If it goes to federal court, and I don’t want to saber rattle here . . . there’s a possibility the township could be required to pay our attorney fees.”
Carlson fired back. “The only reason that I can see that you gentlemen are here is that Grant Township is a very small township,” he said. “We’re being picked on. We’re not happy with it.” He asked the room for a show of hands. Nearly everyone favored the bill. “Our ordinance is passed,” Carlson declared. “You boys know where we’re at. If there’s a problem, go at it.”
Before summer was out, PGE filed a furious 19-page lawsuit in federal court, calling Grant’s ordinance a violation of PGE’s constitutional rights. “Grant Township’s conduct,” the suit claimed, “is deliberate, arbitrary, irrational, exceeds the limits of governmental authority, amounts to an abuse of official power and shocks the conscience.” In October 2014, the Pennsylvania Independent Oil and Gas Association, or PIOGA, a powerful lobbying group, motioned to intervene on PGE’s behalf. Grant Township wasn’t just up against a single energy company anymore – it was up against the entire industry. Linzey had predicted the blowback. “To expect a fully formed legal theory initially out of rights-of-nature is just ridiculous,” he says. “It takes actual conflicts to build that body of law.”
In response, he urged Wanchisn and the other East Run Hellbenders, along with the local watershed – that is, the body of water itself – to file a motion to intervene on the township’s behalf. It was Christopher Stone’s theory put into action, and the oil-and-gas industry was not amused.
“Utter bull crap of the highest order,” read a post on Marcellus Drilling News, a popular industry blog. “But a dangerous precedent if allowed. We can see your dog suing you, the trees that ring your property suing you, wrongful death lawsuits for killing a snake. . . . An ecosystem filing a lawsuit would be funny, if it weren’t such a tragically vicious attack against the fabric of this country and the HUMANS that live in it.”
A year later, Judge Susan Paradise Baxter of the U.S. District Court for the Western District of Pennsylvania rejected the watershed’s attempt to intervene in the case and overturned the township’s ordinance. The takeaway was clear. Grant Township had no right to deny a corporation its right to inject fracking waste. “Although Defendant wishes it were not so,” wrote Judge Baxter, “the development of oil and gas . . . is a legitimate business activity and land use within Pennsylvania.”
Since the election of Donald Trump, the Republican-controlled Congress has already attempted to nix an Obama rule meant to limit oil-and-gas companies from flaring methane, which releases the potent greenhouse gas and other toxins into the atmosphere. It has also rolled back a regulation that prevented mining companies from removing mountaintops and dumping the leftover debris into nearby river valleys. According to a statement issued by the White House in early February, the administration intends to further “nullify unnecessary regulations imposed on America’s businesses.” All of which underscores for Linzey that protecting the environment in Trump’s America will require an epic fight. “Unfortunately, traditional liberal environmentalists are scared to death of that confrontation,” he says. “We have to understand change doesn’t come from comfort.”
For Linzey, the battleground could not be more fundamental. Congress’ power to regulate state policy is laid out in Article I, Section 8, Clause 3 of the U.S. Constitution: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Commerce Clause, as it’s known, binds 50 sovereign territories into the United States of America. The Civil Rights Act of 1964 became law because discrimination was found to have a substantial effect on interstate commerce. The Clean Water Act, Clean Air Act and Endangered Species Act share a similar story. In America, social and environmental justice hangs on commerce. And American corporations have feasted off this arrangement. “Our constitutional structure is an archaic suicide pact,” Linzey says. “You are looking at a system of law that elevates rights of property and commerce above the rights of communities, people and nature.”
The expansion of constitutional rights for corporations – commonly referred to as corporate personhood – began with an 1886 case involving the Southern Pacific Railroad. Chief Justice Morrison Waite, a corporate attorney who had never served a day as judge prior to joining the Supreme Court, determined the 14th Amendment, originally crafted to secure constitutional rights for freed slaves, applied to corporations as well. In 1906, corporations gained protection from unreasonable searches and seizures under the Fourth Amendment. A 1931 case involving a Russian shipbuilder protected corporations from unlawful government seizures under the Fifth Amendment. A series of cases in the 1970s granted corporations free-speech rights under the First Amendment, freedoms expanded in the 2010 Citizens United decision. Four years later, the Hobby Lobby case granted religious freedoms to corporations as well.
But the growing influence of corporations on all branches of the U.S. government has inspired an opposing narrative, albeit one on the fringes of legal theory: the development of a nature personhood. “Given the rigidity and hostility of the current Court’s standing jurisprudence, the intransigence of Congress, and the over-crowded agenda of the Executive Branch,” Georgetown legal scholar Hope Babcock wrote in a 2016 paper on the rights of nature in Ecology Law Quarterly, “this may be the only way to protect our disappearing natural resources.”
That’s where CELDF comes in. One of the organization’s first cases involved Tamaqua, an eastern Pennsylvania community of about 7,000 people not far from Philadelphia. Decades of coal mining had formed massive pits across the landscape, which a number of sludge-hauling companies were using to dispose of human, hospital and industrial chemical waste, including coal ash, a powdery soot that, according to Physicians for Social Responsibility, can cause “heart damage, lung disease, respiratory distress, kidney disease . . . birth defects and impaired bone growth in children.” In 2006, with the help of CELDF, the community passed an ordinance that banned dumping in the pits and declared that “natural communities, and ecosystems” be considered “persons.” Chris Morrison, then Tamaqua’s mayor, says, “I was just standing up for my environment, but there were other states and even other countries that contacted me for advice.”
Most of the communities CELDF has worked with have been in Pennsylvania. The others are spread across the country, concentrated in states that value both the outdoors and industry: Washington, Oregon, Colorado, New Mexico, Ohio and New Hampshire. In 2007, an organization called the Pachamama Alliance contacted CELDF and arranged for Linzey and another attorney to travel to Ecuador, where they helped draft rights of nature into the country’s new constitution. Three years later, Bolivia enacted the Law of Mother Earth, granting nature nearly a dozen rights, including the right to life and to exist. CELDF is presently working in Australia, Sweden and Nepal.
The movement has even spread back to one of its original wellsprings, among Native Americans. Last September, the Ho-Chunk Nation of Wisconsin became the first native tribe to begin the process of formally installing the rights of nature into their tribal constitution. Among other threats, oil-and-gas companies are mining the tribe’s rich sand layers for use in fracking. “This concept was always there,” says Jon Greendeer, the executive director of Heritage Preservation with the Ho-Chunk Nation. “What the rights of nature does is translate our beliefs from an indigenous perspective into modern legislation.”
But nowhere have the boundaries of the fight been more clearly defined than in Grant Township. Big Energy has put its full weight behind stopping rights of nature there because a victory for the town could set a precedent for others to fight back in America’s fracking heartland. There’s billions of dollars on the line, at a time when shale gas layers like the Marcellus have analysts trumpeting America’s energy independence. “For the oil-and-gas industry, this rocks their world,” says Linzey. “It means communities would have the power to say no to fracking and fracking waste, and these corporations would have to find a new line of work.”
In December 2015, a fleet of trucks commenced work at the site of the proposed injection well. The chert-rock layer that PGE intended to fill with fracking wastewater had been mined since the late 1990s for its natural gas. But now the natural gas was nearly tapped out. To transform the site into an injection well, PGE needed to pump down fluids and observe how the well responded. This is called a manual integrity test, and for the residents of Grant Township it was a reasonable measure of how an around-the-clock industrial site would impact their community. “That was the worst week of my life,” says Long, Wanchisn’s daughter. “It was like an invading army set up camp.”
Pickups and tanker trucks came and went. A giant drilling rig lit up the sky like a massive industrial Christmas tree. A security detail guarded the entire noisy operation. “We live here because it’s quiet, peaceful and there’s a sense of community,” says William Woodcock, an interior decorator who works at Lowe’s and lives in a 10,000-square-foot Grant Township estate that serves as a workshop for his partner, Jon Perry, a nationally renowned player-piano restorer. “But if I have to wake up to machinery running 24 hours a day, beaming lights that block out the stars and dumping toxic waste into the ground, the reasons to live here will be gone.”
PGE’s right to begin injecting waste in Grant Township was still far from assured. Although Judge Baxter had struck down Grant’s community-bill-of-rights ordinance, CELDF offered another strategy. The judge’s decision rested on the fact that Grant’s regulations were trumped by state law. But a 1972 state act aimed at increasing the power of local government enabled Pennsylvania communities to adopt something known as a home-rule charter. This meant the municipality would no longer be hamstrung by state laws, and instead be bound by an agreement crafted and voted upon by its residents.
Wanchisn and Long once again hit the streets, joined by a growing number of local allies, including Long’s husband, Mark, and Woodcock and Perry. Woodcock was particularly troubled by PGE’s encroachment. He grew up on a farm in western New York, not far from Love Canal, the infamous neighborhood built atop a chemical-waste dump. Images of the carcinogenic black sludge that oozed into the basements and backyards of Love Canal were seared into his mind. “Here was history repeating itself right on my doorstep,” says Woodcock. “I needed to be a part of at least trying to make it stop.”
Many of Grant’s residents were initially wary of home rule. “They didn’t understand it,” says Wanchisn. “We had thrown a lot at them in a three-year period.” But at the same time, town members had become increasingly willing to join the fight. “There’s a fair degree of ‘fuck you’ in this area,” says Perry. “We don’t want people to come in and mess with us.”
Not only did home rule pass in November 2015, by a margin of two to one, but both Perry and Long were elected town supervisors. Wanchisn and her rebel band had effectively taken over local government. According to the home-rule charter, which remains in effect, the injection of fracking waste in Grant Township is illegal, and nature has rights.
The decision did little to discourage PGE, which conducted the manual integrity test a month later. “CELDF is really pitching a form of anarchy here,” says Kevin Moody, general counsel of PIOGA, the industry’s lobby. “What these people are trying to do is a failed mission. And in the process it is costing our clients real money and time.”
Moody, dressed in a plaid flannel shirt, with a close-cropped head of white hair and matching thin white beard, meets with me at a diner north of Pittsburgh. A couple of months earlier, in September 2016, Judge Baxter had released a statement that her ruling on the ordinance did not stand for the home-rule charter; PGE would have to file a separate lawsuit. While this seemed like a victory for Grant Township, it also meant more legal fees fighting PGE and PIOGA – all of which the town could eventually be responsible for in damages. Now, over a slice of pie, Moody tells me, “The ultimate irony in their position is that they want to deny rights to corporations, which are composed of people, but they want to give rights to ecosystems, which can function fine without people.”
An article in the Pittsburgh Post-Gazette reported that Moody was actively looking for a district attorney with the “intestinal fortitude” to charge Grant Township supervisors under a crime called official oppression. The offense, when government officials exceed their authority, carries a fine of up to $5,000 and a possible two-year prison sentence. At the diner, I ask Moody if he really aims to throw community leaders like Stacy Long and Jon Perry in jail. “It’s an extreme measure,” he says. “But it’s one that is certainly in our toolbox.”
In March of this year, the Pennsylvania Department of Environmental Protection reapproved PGE’s Grant Township injection well, along with a well in nearby Highland Township, a community that has also been working with CELDF. The DEP, it turns out, has a history of overlooking pollution concerns. As the fracking boom kicked into high gear, complaints to the DEP skyrocketed, but the agency did not make any of them public until last year, when a Pittsburgh investigative nonprofit called Public Herald uncovered nearly 10,000 complaints dating back to 2004. Many are terrifying. “Complainant noticed an odor to water about a year ago,” reads one from a woman in Washington County, south of Pittsburgh. “Son has been getting sick and having liver problems, dog has died.”
As for Grant Township, the DEP claims to be working in the best interest of Pennsylvanians. “Our job is to administer the statutes passed by our general assembly,” says Scott Perry, the agency’s deputy secretary of oil-and-gas management. “And operating a disposal well is a lawful activity.”
The new DEP permit requires PGE to monitor the Grant Township site with seismometers, and to shut down the well if it spurs earthquakes of 2.0 magnitude or greater. PGE has since appealed, saying the DEP lacks authority to impose these conditions. At the same time, the DEP has sued Grant and Highland townships, claiming that certain sections of their home-rule charters unlawfully interfere with state oil-and-gas policies. Grant has filed a countersuit, defending the charter’s legality. If nothing else, the rights-of-nature movement has held up the injection well in the courts for five years, with no end in sight.
Meanwhile, the home-rule charter still stands. Even if Judge Baxter strikes it down, Grant is prepared for a potentially confrontational resistance. Last year, the community received training from the Climate Disobedience Center and passed an ordinance legalizing civil disobedience. “If enforcement through nonviolent direct action is commenced,” the document states, “this law shall prohibit any private or public actor from bringing criminal charges.”
According to the Natural Resources Defense Council, the drinking water of 77 million Americans comes from sources that are untested or contaminated. As the Trump administration and Congress continue to dismantle environmental regulations, the question remains: Who will fight back? To some extent, we have already seen the answer. It is rural communities, it is poor communities, it is communities of color, places like Standing Rock, and Flint, Michigan, and Grant Township, vulnerable communities that again and again find themselves on the front lines of the fight for a cleaner world. These are the places where industry goes to dump its waste and do its dirtiest work. “It is areas that suck,” says Long. “Areas that don’t have a population, or at least a wealthy, educated population. It is areas like Grant Township. We are a sacrifice zone.”
Grant Township’s injection-well site is in a meadow
across the street from the cemetery where Wanchisn’s mother is buried. If PGE
ignores the home-rule charter, which Moody says he would advise them to do,
tanker trucks filled with fracking wastewater, a dozen or more a day, coming at
all hours, would veer off Pennsylvania Route 286 at Purchase Line, where
Wanchisn taught elementary school, climb up a hill and through a belt of
forest, then wind back down on curves that for four to five months of the year
are packed with snow and ice. At that point, Wanchisn and Long see two options.
Greet the first truck at the township line and explain to the driver that by
injecting their payload they’d be breaking the law. And then, if the driver
keeps driving, step into the street. “What else do we have to lose?”
says Long. “I am going to put my body in front of a truck. Change happens
because people stand up to fight.”