Updated: Apr 3, 2020
A Pennsylvania’s regulatory agency took the unusual step of revoking a permit it had issued for an injection well to dispose of fracking wastewater in Indiana County.
The state Department of Environmental Protection revoked the permit after the Commonwealth Court in early March issued a ruling that the home rule charter of Grant Township, Indiana County, which banned injection wells, is not superseded by state laws regulating gas operations.
The township in 2015 adopted a home rule charter, with assistance from the Community Environmental Legal Defense Fund (CELDF), which included a “Community Bill of Rights.” The charter bans injection wells as a violation of those rights and recognizes the rights of nature.
The DEP in 2017 issued a permit to Pennsylvania General Energy to inject fracking waste liquid into an unused gas well far underground. The agency also filed a court challenge against Grant Township, arguing that the state Oil and Gas Act and Solid Waste Management Act preempted the township’s authority to ban injection wells.
Injection wells are a common method for the disposal of brines and chemicals that have been used in the fracking process. Most of the fracking waste liquid in Pennsylvania is trucked to Ohio for disposal but more wells are being permitted in Pennsylvania. Wastewater can also be treated at specialized facilities to remove most contaminants.
The Commonwealth Court ruled that the state’s Environmental Rights Amendment (ERA) to the state Constitution did apply in this case. “In sum, the township seeks to prove that hydrofracking and disposal of its waste is so dangerous to the environment as to be a violation of the ERA, and thus that the statutes upon which DEP bases its preemption claims are constitutionally invalid,” the opinion states.
“While the township may or may not be able to prevail on its constitutional claims, this court has already ruled that it may attempt to do so in defense of the DEP’s lawsuit, and this application of summary relief is nothing more than a collateral attack on that decision.” The court case will proceed, but the DEP decision can also be appealed to the Environmental Hearing Board.
The CELDF, which claims that the wells can lead to contamination of drinking water supplies and earthquakes, called DEP’s reversal “extraordinary.”
“This decision does not validate the actions of DEP, but rather vindicates the resistance that communities like Grant have engaged in to force governmental agencies to do the right thing,” said CELDF organizer Chad Nicholson in a press release.
The state’s Environmental Rights Amendment to the state Constitution, adopted in 1971, holds that “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. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
It has been cited in several court cases involving the oil and gas industry, most notably the court challenge filed by several Southwestern Pennsylvania municipalities to Act 13, the Oil and Gas Act. In that case, the state Supreme Court ruled that portions of the controversial 2012 law that would have prevented municipalities from exerting local zoning control over gas development violated the ERA. It has also been cited as a possible way to battle climate change and is a powerful tool for municipalities and environmental groups.