A federal judge last week dismantled another community bill of rights passed by voters last November in Highland Township, PA, to ban underground injection wells and fossil fuel extraction.
Seneca Resources Corp. challenged the home rule charter shortly after it was passed, asking the U.S. District Court for the Western District of Pennsylvania to permanently enjoin its enforcement. Seneca argued that the charter is preempted by state and federal law, in violation of its due process rights, and amounts to an impermissible exercise of legislative authority, among other things.
U.S. Magistrate Judge Susan Paradise Baxter agreed, granting Seneca’s motion for judgment on six of the nine counts. She found that the charter is in fact preempted by the Pennsylvania Oil and Gas Act, more commonly known as Act 13, and wrote that it stands as an obstacle to federal law, is an illegal exercise of legislative authority and violates the company’s constitutional and substantive due process rights with “irrational and arbitrary” language.
Similar charters have been unsuccessful when challenged in court. Highland’s was drafted with the help of the Community Environmental Legal Defense Fund, which has assisted communities across the basin in drafting the anti-fossil fuel bills for referendum votes. The Highland case, however, was different in the sense that the township agreed with Seneca that the charter is unconstitutional and unenforceable.
Before voters approved the referendum, new supervisors on the township’s board voted to scrap an ordinance banning underground injection wells for oil and natural gas wastewater disposal. They did so facing a lawsuit from Seneca, which has since received a permit from state regulators for an injection well.
The home rule charter enshrined the provisions of the ordinance, which prompted the company to take legal action against it. Baxter wrote that the court could “not locate precedents for situations such as this case where a plaintiff has filed the motion and defendants do not oppose, and indeed, actively concur in the plaintiff’s motion.”
The township is in Elk County, which is part of Seneca’s Western Development Area. The company has fought every effort to ban oil and gas-related activity because it would prevent the company from converting natural gas wells into injection wells.