Editor & Publisher, Marcellus Drilling News (MDN)
Pennsylvania DEP has reversed approval of an injection well in Indiana County, blaming a CELDF “community rights” ordinance and thereby enabling the group.
Grant Township in Indiana County, PA has a problem: They’ve hired a potty mouth lawyer to represent them who has a HUGE conflict of interest. Grant’s town attorney is also the lawyer for (and executive director of) the litigious and extreme left-wing group Community Environmental Legal Defense Fund (CELDF), a group committed to ending the use of fossil fuels.
We’ve written plenty about the antics of the CELDF, including their lawsuit on behalf of an ecosystem (see It Speaks! An “Ecosystem” has Filed to Join a Lawsuit in PA). CELDF/Grant Twp. attorney Thomas Linzey is calling the PA Dept. of Environmental Protection (DEP) “chicken shit” for their decision to delay a decision on whether to grant a permit for an non-controversial injection well in the township.
This is the first time the DEP, under the most liberal governor in America, Tom Wolf, and his PennFuture Secretary of the DEP, John Quigley, have decided to cite an ongoing lawsuit in federal court as a reason to delay decisions on granting permits for injection wells.
You may recall that seven selfish townships sued the state in 2012 over the newly passed Act 13 legislation that strengthened PA’s laws governing Marcellus Shale drilling. The towns didn’t like being told they could not pass their own zoning ordinances, in essence regulating oil and gas drilling at the local level. State law in Pennsylvania, as in all 49 other states, regulates oil and gas drilling.
The seven selfish towns eventually won in PA Supreme Court when some of the RINOs on the court decided to create new law, a violation of the Constitution’s separation of powers (see PA Supreme Court Rules Against State/Drillers in Act 13 Case). Although the seven selfish towns won, they did not win the right to outright ban drilling. They must allow shale drilling in at least one zoned district. The question is, does their victory extend to injection wells? Does it not have any bearing on injection wells?
Grant Township (Indiana County), along with Highland Township (in Elk County) have completely banned all injection wells within their municipalities; a violation of the state’s oil and gas laws. It has set up a legal battle that’s gone to federal court. Most attorneys say outright bans of any kind, including wastewater injection wells, are ill-advised and won’t survive a court challenge.
The DEP has said given the federal court case is pending, they would rather wait on granting new injection well permits; at least in towns that have banned injection wells. Is the DEP decision to wait prudent? Cowardly? You be the judge:
“It’s chicken shit because it passes the buck to the federal judge,” said Thomas Linzey, attorney for Grant Township, Indiana County, which banned deep injection wells through an ordinance last year.
DEP says it does not reflect a change in policy regarding deep injection wells. In Pennsylvania, underground injection well permits are primarily issued by the U.S. Environmental Protection Agency. But the state does have authority over permitting the conversion of former producing wells into drilling waste disposal wells.
Last month, DEP oil and gas director Scott Perry wrote to at least two operators, referring to the ordinances and the current litigation as reasons to postpone decisions on the well sites. In a letter to Pennsylvania General Energy regarding a proposed injection well for Grant Township, Perry says the review is nearly complete.
“However, a conflict between this project and an ordinance adopted by Grant Township entitled Community Bill of Rights Ordinance (Grant Township Ordinance) has been brought to our attention.”
PGE had filed a federal lawsuit to reverse the township’s ban, arguing the ordinance unconstitutionally strips the company of its rights. The case continues to play out in court.
A similar letter was sent to Seneca Resources regarding a planned injection well in Highland Township, Elk County, which has also banned deep injection wells. Like PGE, Seneca filed a federal lawsuit against the township. And this has observers wondering whether DEP has shifted against permitting deep injection wells, or if they are simply avoiding the ire of both the industry and environmentalists by waiting for the federal courts to issue a decision on these ordinances.
Back in March, the DEP took the unusual step of reversing its approval of the Grant Township waste water disposal well. The permit had been issued under the previous Corbett administration and the decision to revoke the permit took both the energy company and the opponents of the disposal well, by surprise.
Grant Township’s attorney Thomas Linzey is also executive director of the Community Environmental Legal Defense Fund (CELDF), which has taken its community rights legal strategy to municipalities around the country. He says DEP’s position has always been to ignore local ordinances, on the basis that they are pre-empted by the state oil and gas act. But he doesn’t view DEP’s decision as a vote in his client’s favor.
Rob Boulware, a spokesman for Seneca Resources, wrote in an email that DEP’s decision to delay permit decisions could result in more “costly litigation” for the state and municipalities.
“We believe Pa. DEP has misinterpreted the reach of the Highland Township ordinance, and is ignoring legal precedent and well-established regulations that preempt any municipality’s attempted regulation of oil and gas activities,” wrote Boulware.
Several attorneys interviewed for this story say the ordinances themselves would not survive constitutional challenges, nor would they stand up against the state Municipal Planning Code, which forbids outright bans on any type of activity or businesses that are sanctioned by the state.
- Washington (PA) Observer-Reporter (Sep 4, 2015) – DEP cites local ordinances in wastewater well rejection
Editor’s Note: The interesting thing about this matter is the way the DEP has effectively surrendered its authority to the CELDF by giving it the ability to delay a project merely by enacting a ridiculous ordinance of zero legal credibility – basically the same “community rights” ordinance a Federal judge excoriated in the case of Mora County, New Mexico. The DEP, in doing so, has enabled one of the thoroughly radical and unprofessional special interest groups out there. Thomas Linzey’s comments are self-explanatory as to the real level of respect the CELDF has for the rule of law – zero. His group isn’t an anti-fossil fuels group; rather, it’s a profoundly anti-American group that wants to throw off the US Constitution and start over with a socialist utopia that puts folks such as them in charge. Fracking is just a convenient excuse to pursue their cause.
No one should be fooled either by Linzey’s mock complaints about DEP deferring to the Federal Court. He’s only trying to claim credit for a DEP delay based on an ordinance he knows full well will be tossed out of court. By complaining, he’s suggesting the ordinance had some legal validity that would have allowed DEP to simply deny the permit. DEP played right into his hands and should be ashamed of kowtowing to such a group even if they believe (surely correctly) the Federal Court will throw out the ordinance. This is failure to exercise responsibility and an extremely bad precedent that will only encourage much more of the same. DEP staff certainly know better even if their own radical leadership (the humorless true believer John Quigley) doesn’t.
It is, nonetheless, interesting to note a PGE motion in the federal court case now uses this DEP action as leverage to get the Federal judge to decide the issue. This means the CELDF is not able to effectively argue against the judge using this DEP action as a reason to decide the federal case, as now it is clear PGE is being harmed by the mere enactment of the CELDF ordinance, which is undeniably true and why DEP should be ashamed.
The CELDF response to the PGE is, therefore, by necessity, very deceptive. It completely ignores, for example, the fact its ordinance prohibits even applying for a permit. That’s why the Township, which initiated this lawsuit as a way to help Linzey get a version of his “community rights ” ordinance into Federal court (he’s hoping one day some wacko judge will entertain his wild theories and advance them a little further at the expense of his useful idiot clients) made no issue at that time of PGE not having the permit. It was only after DEP revoked their permit that the Township argued that one was needed and filed a motion to dismiss on that basis. Talk about circular reasoning!
Read the relevant motions here and watch Linzey in action here, especially from 43:30 on when he talks about Mora County, municipal bankruptcy and much more that is an eye-opening window into his radical mind: