Legal Challenge Updates
We appreciate your support as we continue to advocate for your rights, your health and your safety.
In January 2019, Protect PT sent a letter to the PA Attorney General, Josh Shapiro, who ran his campaign on a platform of holding the oil and gas industry accountable for their mistakes. In our letter, we asked the Office of the Attorney General to bring an enforcement suit against Apex Energy for failing to comply with the Clean Streams Law, since the DEP has failed to take proper action against this negligent operator and protect our waters. We also asked that they investigate the conduct of the DEP as they are exhibiting a systemic failure to uphold their mission as a state institution charged with protecting citizens of the Commonwealth and upholding our state constitution.
In response to our letter, we were contacted in March by the AG’s office. They stated that the PA DEP, Inspector General, and/or County District Attorney are the proper institutions to ask for these matters to be investigated. We then wrote a letter to the County District Attorney and the Inspector General asking them to either investigate the issue themselves, or to refer the case to the AG’s office. We have received a response from the IG’s office and will be following up. When we called to follow up with the DA’s office a month after we sent our letter, they had not yet reviewed it. They stated they would be in touch.
On March 25, 2019, Protect PT submitted a Brief in Support of the Substantive Validity Challenge to the Commonwealth Court. Protect PT also coordinated with legal counsel for the Delaware Riverkeeper Network who submitted an amicus brief in support of Protect PT.
Following submission of opposing parties’ briefs, Protect PT then also filed a Reply Brief arguing that 1) the rights of Penn Township citizens are not subservient to the rights of developers and the ordinance must equally protect the rights of citizens, 2) the Township failed to provide evidence of the public interest to be protected and the rationale for siting of the Mineral Extraction Overlay District, and 3) Protect PT’s requested relief would invalidate the MEO map without disturbing the ordinance’s performance standards and remand the ordinance back to the Township for revisions. At this stage, briefing is complete and we anticipate oral argument before the Commonwealth Court in October 2019.
Amicus Brief Briggs
In March 2019, Protect PT submitted an Amicus brief in support of the Briggs family and the rights of private property owners across Pennsylvania in Briggs v. Southwestern Energy Production Company (Case 63 MAP 2018) before the PA Supreme Court. This is an important case regarding the rule of capture in Pennsylvania and whether a developer can hydraulically fracture into the subsurface of its neighbors’ property, exposing them to environmental risks, and take their valuable natural resources without consent or remuneration. The PA Supreme Court has not yet issued a decision in this case.
Environmental Hearing Board Challenge
On Aug. 10, 2018, Protect PT filed an appeal, with the Environmental Hearing Board, challenging the Department of Environmental Protection’s issuance of two permits to Apex Energy (PA), LLC for the Drakulic well pad located in Penn Township PA. We will be sending updates when the court date is set.
In the appeal, Protect PT asserts that the Department acted contrary to law or abused its discretion or acted ultra vires or acted arbitrarily, capriciously, or unreasonably when it issued the Drakulic 1H and 7H well Permits in a manner:
1. Which permits well development in close proximity to sensitive receptors and populations such as residential homes, a school, and species of special concern in violation of the Department’s responsibilities under Article I, Section 27 of the Pennsylvania Constitution;
2. Which permits a public nuisance in violation of the Department’s responsibilities under 71 P.S. § 510-17 to abate such nuisances;
3. Which permits well development in violation of the provisions of 25 Pa. Code § 78a.55 which addresses control and disposal planning and emergency response for unconventional wells.
For this challenge, Protect PT will need to raise additional funds. To contribute to this effort, donate to our legal fund.
4 Level Green
In late May, Protect PT received a decision from the Pennsylvania Supreme Court denying Protect PT’s Petition to Review the Commonwealth Court decision. This effectively closes the lawsuit related to these four land use appeals. However, Protect PT staff and members will continue to monitor these well sites as they are developed and evaluate enforcement options if and when issues arise. Protect PT is also researching ways we can bring other types of actions against the operator or regulator.
Metis & Gaia Appeals
On April 9, 2019, the Westmoreland County Court of Common Pleas issued two separate opinions upholding the decisions of the Penn Township Zoning Board to grant special exception approval for the Gaia and Metis well pad sites. On May 9, 2019, Protect PT filed two appeals (one for Gaia and one for Metis) to the Commonwealth Court.
In light of the similar legal arguments in Protect PT’s Petition for Review to the PA Supreme Court, the Gaia and Metis appeals before the Commonwealth Court are narrowed to the issue of whether the board erred as a matter of law or abused its discretion when it determined that objecting parties failed to establish sufficient credible evidence that the proposed use would create a high probability of an adverse, abnormal or detrimental effect to the public, health, safety and welfare.
You can find more in-depth updates on the member portal forum. To access the forum, sign into the member portal and click on the forum. If you are not a site member but would like to become one, sign up on the member portal tab in the top right corner. Once you have requested access, a staff member will check to make sure your membership is up to date (please allow a couple days for this process, especially over weekends). Your membership must be up to date to access the portal. If you have any questions, please contact our Outreach Assistant Mary at email@example.com.
Penn Township Injection Well Ordinance
In March 2018, Protect PT submitted public comment on the proposed Zoning Resolution, Chapter 190, Zoning, Standards for the Location of Injection Wells within the Township. The Penn Township Commissioners incorporated these comments into the ordinance giving the constitutional rights and welfare of citizens the most protection possible under the current law.
Penn Township Commissioners took comments from the previous public hearing and implemented changes which strengthen the performance standards in the ordinance language. This will ensure that future operators in Penn Township will have a clear understanding of what is expected in order to conduct business in the Township.