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PGE reduces legal fees in Grant Township case

A local company that won a decision over an Indiana County township could have taken $500,000 more in legal fees.

In a document filed Sunday, a federal judge ruled Pennsylvania General Energy could have requested all of the attorney’s fees generated during a case involving a proposed injection well.

United States District Court for the Western District of Pennsylvania Judge Susan Paradise Baxter said in her memorandum opinion that she was not surprised at the number of billable hours submitted by PGE’s attorney’s in the case. “The records show that attorneys billed PGE for 1,738.70 hours,” Baxter said. “This number comes as no surprise to this court. This case has a protracted and convoluted procedural history… Each of the many filings was inordinately lengthy and some were byzantine” — excessively complicated.

“The calculation of this number of hours is reasonable,” she said. “In fact, this court finds that the number of hours is reasonable both for what is included, but even more so for what is not included. The most striking example is the work of Lisa McManus, vice president and general counsel for PGE, who spent over 1,000 hours drafting filings, yet none of her time is included in the request for fees.”

“PGE has supplied information sufficient to recover all the fees billed for this litigation but only seeks a fraction of those fees in a good-faith effort to reduce the financial hardship on the township,” Baxter said.

Those hours add up to legal fees in excess of $600,000, “but to avoid bankrupting Grant Township, PGE expressed a willingness to accept $102,979.18,” she said.

According to a footnote in the opinion, the $102,979.18 includes $100,000 in attorney’s fees and $2,979.18 in costs and online research fees. According to Baxter, PGE’s attorneys invoiced the company at a rate of $355 an hour. By accepting $100,000, “PGE is basically agreeing to an average hourly rate of approximately $57.51.”

Grant Township opposed the legal fees on several bases, but was denied on all of them, including because “the losing party’s financial ability to pay is not a ‘special circumstance,'” Baxter said. “Moreover, Grant Township should have to bear some of the responsibility here as it was on notice that the ordinance was constitutionally suspect and likely preempted before it was passed.”

The township attempted to prevent PGE from using an existing well as an injection well to dispose of wastewater.

In 2014, the U.S. Environmental Protection Agency issued permits to convert an old natural gas well into an injection well.

Grant Township created a “Community Bill of Rights Ordinance,” according to Baxter. That ordinance expressly prohibited “depositing of waste from oil and gas extraction.”

PGE sued, challenging the constitutionality of the ordinance. That suit was settled, with the township paying PGE $1 prior to the scheduled start of a trail in the matter.

The Pennsylvania Department of Environmental Protection issued a final permit approving the injection well proposal in March of 2017. At the same time, the agency took the township to court to determine if its local rules would supersede state law.

The township’s efforts did not hold up in court.

The township was “enjoined from enforcing” portions of the ordinance because “each was preempted by state law,” Baxter said.

That did not stop the township.

“Even after the ordinance was adjudged preempted by state law, Grant Township sought to make an end run around the judicial determination by amending its form of government and adopting the pre-empted and constitutionally deficient provisions in the form of a Home Rule Charter,” Baxter said.

PGE also filed for sanctions to be levied against the township’s attorneys, Thomas Linzey and Elizabeth Dunne of Community Environmental Legal Defense Fund, for “frivolous, unfounded, harassing pleadings and motions…” In January, 2018, Baxter ordered Linzey and Dunne to pay PGE $52,000, and requested that the Disciplinary Board of the Pennsylvania Supreme Court consider possible disciplinary measures against Linzey.

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