Feud over injection well before state Supreme Court

A near-decade long dispute between an Indiana County township and a Warren-based oil and natural gas firm, Pennsylvania General Energy, has wound its way to the state Supreme Court.

The heart of the feud is a well in Indiana County that PGE is seeking to convert into an injection well for the disposal of oil and gas wastewater.

A Commonwealth Court opinion and order from last July is the basis for the appeal and also provides a procedural history of the case.

That opinion explains that in 2014 Grant Township passed a Community Bill of Rights ordinance that prohibited the “depositing of waste from oil and gas extraction” within the township. PGE responded by filing suit in federal court challenging the constitutionality of the provision, an assertion ultimately upheld in that litigation.

While that federal case was ongoing, PGE filed with the state Department of Environmental Protection for a “change-in-use well permit” which was granted in March 2017. The township’s latest brief says that the permit was subsequently revoked.

According to the opinion, that permit “would allow PGE to convert its existing natural gas well located in the Township into an underground= injection disposal well for the disposal of brine and other oil and gas wastes.

The municipal ordinance may have been deemed unconstitutional in federal court but the township responded by adopting home rule charter provisions with the same restriction.

DEP challenged the charter on the grounds that it conflicted with existing state law but the township asserted that the provision was lawful under the Environmental Rights Amendment.

The Commonwealth Court found last summer that “through its defenses and counterclaims, the Township is attempting to relitigate the constitutional validity of the Charter’s provisions, which was fully and finally adjudicated in the federal litigation” and ruled that “PGE is entitled to summary relief invalidating the Charter based upon the federal litigation.”

The township appealed that decision to the state’s high court and filed its brief with the court late last month.

“Grant Township and its Supervisors challenge a determination that certain provisions of the Township’s Charter violate the U.S. Constitution,” the brief states. “About nine years ago, the people of Grant Township learned about a fracking waste injection well slated to operate close to their sole source of drinking water, which they concluded was a threat to their health and well-being.

“Since that time, the people of Grant Township have worked to protect their constitutionally secured right to a clean and healthy environment, including by passing laws to ban the disposal of fracking waste. In response, Grant Township has been subjected to continuous and aggressive litigation tactics by PGE, DEP, and the oil and gas industry as a whole.”

The township’s “legal theory” is that there are still “core state constitution issues under the ERA (Environmental Rights Amendment)” still to be decided.

“Grant Township and its Supervisors respectfully request the Pennsylvania Supreme Court either to reverse the Commonwealth Court’s July 12, 2022 dismissal of the Township’s Counterclaims and remand the case for trial as previously, and repeatedly, ordered by the Commonwealth Court,” the brief concludes. “Alternatively, the Township and its officers request the Supreme Court to exercise its inherent powers to find that there are no issues of fact, and that in all respects raised by the Township, the Charter is a lawful and proper enactment by the people of Grant Township that is wholly supported by principles of Pennsylvania’s Environmental Rights Amendment.”

DEP and PGE have, according to the online court record, until March 29 to respond.


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