Updated: Jul 29, 2020
Protect PT (Penn-Trafford), is dedicated to ensuring residents' safety, security, and quality of life by engaging in education and advocacy to protect the economic, environmental, and legal rights of the people in Westmoreland and Allegheny counties. To that mission, we have a few legal cases we have been working on in order to bring justice to our community and residents in our region. In an effort to uphold this mission this past year, we have been working on two important cases, a Motion for Summary Judgment opposing the PA Department of Environmental Protection and the second challenging the Mineral Extraction Overlay (“MEO”) imposed by Penn Township.
In September, Protect PT filed a Motion for Summary Judgment opposing the Department of Environmental Protection’s (“DEP”) issuance of unconventional well permits to Apex for the 1H and 7H wells at the Drakulic well site. A Motion for Summary Judgment will be granted when there is no genuine issue of material fact.1 We are arguing that the PA DEP abused their discretion by granting the drilling permit and failed to meet its obligations under Article I, Section 27 (“Section 27”) of the Pennsylvania Constitution. Section 27 guarantees all citizens of Pennsylvania the “right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”2 As trustee of these resources, the DEP is responsible for conserving and maintaining them for all people, including present and future generations.3
To prepare for this motion, we researched and reviewed Apex’s permit filings for the Drakulic permits. The DEP failed to meet Section 27 requirements when they issued Apex two new well permits despite the fact that Apex did not have a complete and accurate emergency response plan (“ERP”) in place. The lack of an emergency response plan means Apex failed to identify risks and hazards within half a mile of the well site, leaving residents to face the reality that they are put at risk of evacuation with no plan in place on how that will occur, where they will go, who will alert them to leave their home, how long they will be forced away and what measures they need to take to protect their families. Additionally, Pennsylvania laws require all well-site operators to identify any precautions needed to protect the local environment and surrounding community.4 Additionally, DEP issued these permits with full knowledge of Apex’s ongoing violations at other unconventional well sites, including the Fatur well site.
By permitting Apex to drill additional wells, the DEP is permitting a public nuisance. A public nuisance is defined as an “unreasonable interference with a right common to the general public.”5 Pennsylvania courts have long held that pollution of public water supplies constitutes a public nuisance.6 Apex’s ongoing violations at the Fatur Well Site create public nuisances because Apex has been polluting local water sources. Without adequate plans in place, Apex could create further public nuisance with water pollution at the Drakulic site.
DEP’s self-stated mission is “to protect Pennsylvania's air, land, and water from pollution and to provide for the health and safety of its citizens through a cleaner environment.”7 As trustee of the Commonwealth, the DEP is responsible for ensuring that Apex and other operators comply with laws and do not harm human health and the environment. By issuing Apex’s additional permit requests, the DEP has not only failed its own mission but has failed its constitutional duties as trustee of the Commonwealth.
Protecting Community Rights
In a separate case, Protect PT is also in the process of challenging the validity of a zoning ordinance enacted in Penn Township. A substantive validity challenge is appropriate when an individual or group is aggrieved by permitted use or development on land owned by another.8 Penn Township’s ordinance allows for the approval of additional unconventional well permits without proper consideration of community characteristics, health, and safety, and environmental welfare for present and future generations.
Zoning ordinances are presumed to be valid and constitutional unless the challenging party proves otherwise.9 Protect PT asserts that when the municipality enacted an ordinance that combines two zoning districts, the most intensive and least intensive, it failed to consider the heavy industrial activity that impacts the community in terms of air and water pollution, traffic, noise, light, and threats to public health. Because Penn Township failed to account for these impacts, the ordinance should be counted invalid. In this case, the ordinance’s Mineral Extraction Overlay (“MEO”) results in a haphazard pattern of industrial development that puts the profits of industry and a limited group of landowners before the health, safety, and welfare of the whole community. Despite Protect PT’s presentation of expert witnesses detailing the negative impacts of unconventional drilling, the municipality continues to fail to consider the needs of the community in favor of the financial gain of the industry. To compound this problem, when the Township doesn’t give the industry exactly what they want, the industry files a frivolous lawsuit for an exorbitant amount of money like in the case of Apex vs Penn Township. In short, the ordinance allows for nothing more than public nuisance and health and safety concerns for nearby residents. Due to these concerns, Protect PT continues to petition the courts to direct the Township to revise the ordinance to protect the health, safety, and welfare of the community.
1 Pa. R.C.P. No. 1035.2 (2019)
2 Pa. Const. Art. I, § 27
4 25 Pa. Code § 78a.55(i)(g)
5 Restat 2d of Torts, § 821B(1)
6 Machipongo Land & Coal Co. v. Dep't of Envtl. Prot., 569 Pa. 3, 41 (2002); Pa. R. Co. v. Sagamore Coal Co., 281 Pa. 233, 247 (1924); see also 27 Pa. C.S. § 3132.
7 Mission Statement, PA. DEP’T. OF ENVTL. PROTECTION, https://www.dep.pa.gov/About/Pages/default.aspx (2019).