An unlikely crew of environmentalists who took on the powerful Pennsylvania fracking industry in a David vs. Goliath battle to keep an injection well out of their community have notched an important victory in their fight.
Using a novel strategy — seeking legal rights for nature itself — the rural western Pennsylvania community of Grant Township has been battling for seven years to stop the permit for the injection well, which would have brought a 24/7 parade of trucks carrying brine, a toxic byproduct of oil-and-gas drilling that would be shot down the well and into a rock layer deep beneath the farms and woods in the area.
Earlier this month, in a stunning reversal, the Pennsylvania Department of Environmental Protection (DEP), which in 2017 sued Grant Township for interfering with the agency’s authority to administer state oil-and-gas policy, revoked the permit for the injection well.
“This decision is soooooo delicious,” says Stacy Long, a graphic designer and township supervisor who together with her mother, Judy Wanchisn, a retired elementary-school teacher, helped lead the charge to stop the well. “I am hopeful that the haters and naysayers will take note, and that communities will be inspired with what’s just happened and run with it. Fights like ours should mushroom all around Pennsylvania.”
Grant Township’s story, first covered by Rolling Stone in 2017, will also be featured in Invisible Hand, a documentary on “rights of nature” produced by Oscar-nominated actor Mark Ruffalo, slated to premiere at the 2020 Columbus International Film Festival in Ohio. “Grant Township has proven against all odds that a community is capable of stronger protections for the environment than state or federal governments,” says the film’s co-director Joshua Pribanic. “By taking a stand and winning, they’ve set a new precedent worldwide on what the rights of nature can accomplish.”
At play in Grant Township was whether a corporation had the right to inject fracking waste in a resistant community, or whether the community — and its streams, soils, and species — had the right to block the corporation from depositing its waste. In the course of the fight, Grant adopted an ordinance that established its right to local self-government, and later a home-rule charter, made possible by a 1972 state act that sought to give more power to municipal governments. According to their charter, injection wells are illegal — and nature has rights.
The rights-of-nature idea comes from a paper by law professor Christopher D. Stone, “Should Trees Have Standing? Toward Legal Rights for Natural Objects.” “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.” As Jon Greendeer, the executive director of Heritage Preservation with the Ho-Chunk Nation of Wisconsin pointed out to Rolling Stone in 2017: “What the rights of nature does is translate our beliefs from an indigenous perspective into modern legislation.”
The victory for Grant Township could potentially ripple across the fracking industry, already struggling from global price wobbles, a push toward renewables in the face of climate change, increased criticism over health harms to communities, and recent market fluctuations caused by the coronavirus.
The DEP’s decision to revoke the injection well permit was laid out in a March 19th letter to Pennsylvania General Energy, the company that had originally applied for the permit. “Operation of the injection well…would violate a local law that is in effect,” the DEP letter stated, citing the charter enacted by Grant Township that banned “the injection of oil and gas waste fluids.” In 2017, the DEP sued Grant over this charter’s language, so the decision to suddenly accept the terms of the charter was significant. When asked by Rolling Stone to explain the agency’s shift in tone, DEP spokesperson Neil Shader stated, “DEP cannot comment substantively regarding a matter in litigation.”
The litigation referred to is the suit DEP brought against Grant in 2017. That same year, Grant brought a countersuit defending their charter, arguing it was necessary because the DEP had failed to do its job of protecting the community’s environment. The case is presently in Pennsylvania’s Commonwealth Court; a decision issued in early March stated that “the Township seeks to prove that hydrofracking and disposal of its waste is so dangerous to the environment as to be in violation of” a part of the Pennsylvania Constitution called the Environmental Rights Amendment. This amendment states “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”
Essentially, the court is saying it wants to hear the township’s argument for why frack waste would violate their constitutional rights, and the court is refusing to simply dismiss the case, as DEP had asked it to do, says Chad Nicholson, an organizer with the Community Environmental Legal Defense Fund, the Mercersburg, Pennsylvania-based law firm that served as Grant Township’s legal counsel and has worked with communities around the country on rights-of-nature cases.
It is unclear just how the Commonwealth Court’s ruling may have affected DEP’s decision to revoke the permit for the injection well.
Still, the ramifications for Pennsylvania communities that are fighting fracking may be significant. “One extraordinary legal issue raised in the case presently before the Commonwealth Court is that fracking in Pennsylvania may violate the community’s right to a clean environment and that communities adopting laws that protect their environment could thus survive intact,” says Nicholson.
“DEP’s decision to revoke the permit is not just about Grant,” he adds. “It also recognizes that local laws passed by other communities, whether related to fracking, pipelines, or injection wells, would also authorize the DEP to deny permits. This is a huge step forward for local resistance to the oil-and-gas industry in Pennsylvania.”
But when asked whether this meant that communities now had an effective legal pathway to show that fracking violated their state constitutional rights, Nicholson checked his enthusiasm. “The courts and the DEP have a history of not protecting the environment, which is why communities like Grant had to do this in first place,” he says.
Regardless, the oil and gas industry was aghast at the DEP’s decision to revoke the permit. “This is truly disappointing,” read an article published last week by the pro-industry Marcellus Drilling News. The DEP, the site stated, has caved “to radicals.”
When Pennsylvania Independent Oil and Gas Association general counsel Kevin Moody was asked in 2017 by Rolling Stone what would happen if Grant Township prevailed, he replied: “Anarchy and chaos.” People would “use local governments to create their own little areas of laws superior to state and federal laws,” he said. “An impossible way for our country to function.” When asked last week to comment on the ramifications of DEP’s decision to revoke the permit, Moody declined.
The industry’s “brine,” traditionally disposed of in injection wells, has long escaped notice, but the waste product rises to the surface at America’s oil and gas wells to the tune of nearly 1 trillion gallons a year, and is filled with human carcinogens like benzene, toxic heavy metals like arsenic and lead, and the radioactive element radium in quantities that can be thousands of times the EPA’s safe drinking water limit. Furthermore, research by the U.S. Geologic Survey has increasingly linked injection to earthquakes. As the sheer volume of brine has increased under the past decade’s blitz of drilling — and community pressure against the facilities has mounted nationwide — what to do with the stuff has posed problems for the industry from Pennsylvania to North Dakota to West Texas.
“For me it has always been about the right to protect our water, our hellbender salamander and our home,” says Wanchisn, referring to an ancient species that lives under stream boulders in the area.
“When people realize something that is cherished may be gone and you may not get it back,” she says, “you begin to see that a fight has to be waged.”