Natural Gas NOW
Inflection Energy has won another victory over fractivism; a court order demanding the William Penn Foundation gang post bond to pursue a frivolous lawsuit.
There is such a thing as justice in the world of fighting fractivism and it’s very poetic. Inflection Energy (one of my planning clients, as a matter of full disclosure) achieved a major victory in the Fairfield Township, Lycoming County, Pennsylvania case brought by the William Penn Foundation gang (Delaware Riverkeeper, PennFuture, et al) on behalf of some NIMBY landowners all too willing to be used in the ideological battle over fracking. Now, it’s done it again in a Loyalsock Township case, where another token NIMBY represented by radical attorney Jordan Yeager bit the dust on two fronts.
This case is Capel vs. Loyalsock Township Board of Supervisors and it involves a proposed gas well site known as the Griggs site. “Oil and gas development” is explicitly permitted as a conditional use in the A-R Agricultural Residential District, which means it a permitted use subject to the imposition of protective conditions to address any particular review criteria set forth in the zoning ordinance. Loyalsock Township reviewed the application and, following a hearing, granted conditional use approval subject to 16 such conditions.
Laura Capel, a neighbor of the proposed gas well appealed the decision of the Township bizarrely arguing that because oil and gas development was an “industrial use” it belonged in the Industrial District even though it is expressly permitted in the R-A District. She was represented by Delaware Riverkeeper attorney Jordan Yeager, which, of course, raises the question of who paid his legal fees (the Riverkeeper paid Yeager’s firm $153,823 in 2014).
Yeager then used the case as an opportunity to work in a challenge based on Article I, Section 27 of the Pennsylvania Constitution, arguing “state and local government officials have an obligation to assess whether any proposed project, law, regulation or ordinance would cause unreasonable ‘actual or likely degradation’ of air or water quality, or other protected constitutional features, such as natural and scenic values of the environment.” Capel was used, in other words, to advance the Riverkeeper’s plan for squelching all oil and gas development in Pennsylvania.
Not that Capel wasn’t willing to be used. As Inflection’s petition to the court to impose a bond on what was an obviously frivolous land use appeal revealed, she was intent on delaying the ability of Inflection to proceed with the development of its gas wells, a fact she admitted on multiple occasions. Inflection’s legal counsel argued that a “land use appeal is frivolous where brought for purpose of delay” and documented the costs associated with the delay. It requested, therefore, the court impose a bond to cover its damages in the event the Capel appeal was allowed to go forward. Judge Brandon Vanston, Lycoming County’s Senior Judge agreed, rendering the following order:
AND NOW, the 6th day of November, 2015, in consideration of the Intervenors’ Petition seeking to require the Appellant to post bond in the above matter; and, after hearing pursuant to 53 P.S. Sec. 11003-A(d) held on November 3, 2015; and, the court finding that the Appellant has failed to articulate any issue concerning the conditional use zoning approval granted in the matter not having met the objective standards of the zoning ordinance in question; and, the court further finding that the appeal filed in the above matter was done so principally for the purpose of delay. As a consequence,
The Court concludes that the appeal of Laura Capel in the said matter is frivolous.
As a further consequence,
IT IS ORDERED that the said Laura Capel is directed to post a bond with the Prothonotary of this court, as a condition to proceeding with the appeal. The said bond shall be filed not later than December 4, 2015, and shall be in the principal amount of Five Million Six Hundred Ninety Thousand ($5,690,000) Dollars, with surety to be approved by this court.
That wasn’t all as Judge Evanston also dismissed a motion by Capel to vacate the Township decision and decided her appeal was frivolous not only on the basis of attempts to delay but also on the merits. Yes, the case can go forward, but only if Capel posts a bond in the amount of $5,690,000 which, of course, is a major obstacle, especially given the fact the judge has already found the appeal to be frivolous on its merits and is unlikely to be successful.
The bottom line? This was a major victory for Inflection Energy and another lesson in how to fight back against fractivism of the likes financed by the William Penn Foundation and other special interest funders of dirty tricks outfits such as the Delaware Riverkeeper. They were whipped by superior preparation and out-lawyered by superior legal representation from attorneys who actually understood land use law and weren’t engaged in ideological polemics. Those are powerful lessons for other gas companies and landowners fighting fractivism everywhere.