Briefs have been filed with the U.S. Court of Appeals for the Third Circuit in the years-long feud between Warren-based Pennsylvania General Energy and Grant Township, a rural Indiana County municipality.

The cases originated when Grant Township attempted to prevent Pennsylvania General Energy from utilizing a defunct natural gas well as an injection well to dispose of oil and gas wastewater.

In 2014, the U.S. Environmental Protection Agency issued permits for PGE to convert the well and, in response, Grant Township crafted a “Community Bill of Rights” aimed at prohibiting PGE’s proposed activity as a means of protecting the water supply in their community.

PGE challenged the constitutionality of the ordinance and ultimately settled with Grant Township for $1 dollar while elements of the ordinance were struck down on constitutional grounds.

In 2017, the state Department of Environmental Protection approved the injection well proposal and took the township to court to determine if its local rules would supersede state law. DEP won that case.

That did not stop the township.

According to an order from federal Western District of Pennsylvania Judge Susan Paradise Baxter filed in late March, 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.”

In the wake of the settlement between PGE and Grant Township, PGE sought to collect legal fees from the township that could have exceeded $600,000 but, Baxter wrote, PGE “only seeks a fraction of those fees in a good-faith effort to reduce the financial hardship of the township” and to “avoid bankrupting Grant Township…”

The total PGE seeks to collect is $100,000 with an additional $2,978.18 in costs and online research fees.

Baxter found that the number of hours PGE’s attorneys worked on the case “reasonable” and said that the 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,” or excessively complicated.

She further found that 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,” noting that ability to pay is “not a ‘special circumstance.'”

In April, Grant Township filed a motion before Baxter seeking to stay execution of the order awarding PGE the $102,978.18 in legal fees and argued that they shouldn’t have to post security, essentially a bond for the cost of the judgment, pending the appeal to the Third Circuit.

The essence of the township’s argument cited case law showing that the procurement of a bond wasn’t required in cases involving political subdivisions.

PGE responded by saying it “does not oppose a stay of the order, in the event Grant Township posts an appropriate bond” to “cover the full judgment” and challenged the township’s interpretation of the case-law cited.

On June 3, Baxter denied the township’s motion, ordered the township to post a bond for the full amount within 30 days and said, at that point, the order would be stayed pending appeal.

Later in June, attorneys for the township filed a notice of appeal indicating their intent to appeal to the U.S. Court of Appeals for the Third Circuit, which is based in Philadelphia.

A summary of the case filed by Grant Township indicates that the township, at a different docket, also appealed the Baxter order that levied the attorneys’ fees in the first place.

That brings current developments in the case before the Third Circuit.

Grant Township filed its brief in the case on July 26 and PGE countered on August 5.

The township, with a population of about 700 people, asserts that its initial ordinance was “to protect against the fracking waste disposal in close proximity to residents’ homes and their sole source of drinking water….”

After Baxter struck portions of that ordinance, the township notes that “the people of Grant Township passed, by popular vote, a Home Rule Charter” and “enacted provisions banning the disposal of fracking waste based on its home rule powers” and other state regulations.

The township’s brief notes prior arguments made that “given its extremely limited resources, virtually any amount” of legal fees owed “would bankrupt the Township.”

They claim that “Because Grant is unable to pay the judgment or post a bond, an attempt by PGE to collect would case Grant to have to enter Act 47 proceedings as a ‘distressed municipality,’ with potentially irreparable consequences to the Township.”

A footnote in the brief notes that those “irreparable consequences” could include “even the dissolution of Grant Township.”

The township avers that PGE “has control over the timing of when the ministerial act of recording a judgment is performed” and said that would leave the township “in limbo as to when it must rush to file a stay motion…”

PGE argues that the Community Bill of Rights enacted by the township was designed “to prevent” PGE “from operating an underground injection well in Grant Township.”

They note that the township “has not appealed” a 2015 order “on the merits of PGE’s claims…”

PGE claims that the amount of attorney’s fees sought is “in recognition of Grant Township’s limited means” and claims Grant Township is still “in contempt of that Order.”

They argue for various reasons that the township is not entitled to a stay without posting bond and indicates that “Grant Township has repeatedly and unequivocally stated that it cannot pay any award of attorneys’ fees, regardless of the amount.

PGE states further in its brief that “Grant Township has not shown that it will be able to satisfy the judgment. On the contrary, Grant Township has repeatedly and unequivocally stated that it cannot pay any award of attorneys fees” citing Grant Township Supervisor Jon Perry who said in a previous filing that “Grant Township does not have the means to pay attorney’s fees to PGE in any amount — not $500,000, not $100,000 and not $1,000.

PGE points out that the township “has continued to litigate this matter… regardless of multiple adverse judgments against it” and alleged that the township “continues to play to the sympathies of the court by claiming that it will need to enter Act 47 proceedings as a distressed municipality or take other steps to avoid paying its obligations.

“Bonds can be obtained for a very small percentage of the bond amount. No doubt, if Grant Township had attempted to obtain the security required by the District Court and had been unable to do so, it would have submitted that evidence to this Court. Therefore, it is appropriate to assume that Grant Township either did not seek a bond or obtained a commitment for a bond but refused that commitment.”