The state Department of Environmental Protection has sided with a Warren oil and gas producer in a years-long battle over an Indiana County well.

At issue is Warren-based Pennsylvania General Energy seeking to convert a well it owns in Indiana County into an injection well for the purpose of disposing 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.

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.

DEP says in its brief filed last week that it initially filed the Commonwealth Court action.

“As the executive agency charged with administering those environmental statutes, DEP challenged the Oil & Gas Waste Ban because it conflicted with state environmental laws,” according to the brief, “and criminalized DEP’s permitting and regulation of oil and gas activities.”

DEP also sided with the July order: “The prior federal judgment addressed the same issue that was later before the state court: the validity of Grant’s ban on corporate oil and gas waste disposal. The federal court held that the text of the ban violated federal constitutional rights to equal protection, to petition government, and to substantive due process.”

DEP argued that the switch from an an ordinance to home rule results in a “distinction without a difference”

The agency’s filing also made a broader Constitutional point.

“The language specifically considered and found unconstitutional by the federal court remains a central part of the (township’s) Charter,” DEP argues. “State laws that violate federal constitutional rights, whether equal protection rights or other rights, are invalid.”

As the dispute pushes toward a decade in length, the township continues to defend its right to block PGE.

“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,” the Township’s brief explained.

“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.”