December 2015 Sneak Peek Preview

Local Self-Governance

‘Rights’ Ordinances Wrong Way To Go

By Kevin Moody

WEXFORD, PA.–The Pennsylvania Independent Oil & Gas Association intervened in Pennsylvania General Energy (PGE) v. Grant Township to try to put a stop to the so-called community bill of rights ordinances championed by the Community Environmental Legal Defense Fund (CELDF). These tactics are intended to strip corporations of all rights granted to “persons” under state and federal constitutions, and prohibit corporations from challenging the validity of the ordinances, bestow personal “rights” on natural communities and ecosystems, and invalidate state and federal government permits and laws inconsistent with the ordinances.

Part of CELDF’s sales pitch to communities is offering free legal services if the ordinance is challenged. We think that is a risky pitch because CELDF’s ordinances have never survived a legal challenge. Also, if the community loses, it can have serious consequences when the plaintiff seeks damages and legal costs. That happened in Mora County, N.M.

PGE has asked the district court involved in the Grant Township case to award it damages and attorney fees, and a Nov. 13 Pittsburgh Business Times article quotes a CELDF spokesman saying: “Any damages awarded by the court against the township would have to be paid by the township.”

In the Elk County, Pa., community of Highland Township, where Seneca Resources is challenging one of CELDF’s ordinances, some residents and officials have expressed concern publically that a loss could bankrupt the township.

PIOGA is concerned with the unlawful disruption of the legitimate business operations of its members by these community bills of rights, and also with their proliferation across the country because that helps give CELDF and the ordinances publicity. CELDF appears to welcome this publicity to help advance its cause for constitutional change, which is what is necessary to establish its asserted right to local self-government–as Section 8 of the Grant Township ordinance acknowledges.

CELDF’s continued efforts, and municipalities’ willingness to even consider or adopt these ordinances in the face of all adverse judicial decisions, shows that CELDF is not stopping. PIOGA is trying to get as many definitive judicial decisions in Pennsylvania as it can, even though the primary effect of the decisions so far seems to be even more notoriety for CELDF’s ineffective tactic, not deterrence.

More To Come

Despite this significant win, the case is not over. Grant Township has filed for reconsideration, asking the court for a decision on whether the people of the townships have the constitutional right to local self-government that the ordinance relies on, or alternatively, whether the Pennsylvania Constitution’s Environmental Rights Amendment provides the constitutional right to local self-government necessary to authorize the ordinance.

PIOGA’s intervention complaint asserts there is no such constitutional right to local self-government, and the federal judge denied Grant Township’s counterclaim because the township failed to establish that such a right existed.

For its part, PIOGA has filed a request for correction and amendment concerning the judge’s reason for not ruling on PGE’s Oil and Gas Act pre-emption claim. The motion asks the U.S. district court to correct the erroneous statement in its decision that the Oil and Gas Act pre-emption provision of Act 13 (Section 3302) was declared unconstitutional by the Pennsylvania Commonwealth Court as part of its decision on remand in Robinson Township v. Commonwealth of Pennsylvania.

Another twist came with the Nov. 3 general election, when Grant Township voters approved a home rule charter that includes the same ban on “the depositing, disposal, storage, beneficial use, treatment, recycling, injection, or introduction of materials including, but not limited to, brine, ‘produced water,’ ‘frack water,’ tailings, flowback, or any other waste or by-product of oil and gas extraction, by any means,” as did the ordinance that was held to be unconstitutional. The township’s adoption of home rule could mean it takes a little longer to resolve the case, but the end result will be the same.

A home rule community can’t violate the U.S. or Pennsylvania constitutions, and the statute enabling home rule contains a host of state law prohibitions and limitations on what a home rule community can do.

The constitutional provisions that invalidate the community bill of rights ordinance also invalidate Grant Township’s home rule charter. CELDF needs constitutional change to establish the right to local self-government that its ordinances rely on, but misusing these local communities, ordinances and home rule charters is not a proper way to try to get it.

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Kevin Moody is general counsel for the Pennsylvania Independent Oil & Gas Association. He has both public and private sector experience, having worked at the Pennsylvania Department of Revenue and Public Utility Commission, as well as mid-major law firms based in Philadelphia and Pittsburgh.

This story came from the print edition of The American Oil & Gas Reporter. For other great articles about exploration, drilling, completions and production, subscribe.