Nevertheless, They Persisted
How one small town in Pennsylvania is successfully fighting the fracked gas industry
JUNE 3, 2014. Looking back, many residents of Grant Township, Pennsylvania, believe that was the day their fight against the state's powerful fracking industry began—the point at which they started to assert their sovereignty over the lands and waters of their woodland community. That was when the battle lines were drawn in a contest that would come to dominate town affairs for years to come.
It was the first Tuesday of the month, the day of the routinely scheduled township meeting. Normally, the meetings are scarcely attended, quiet and uncontroversial, focused mostly on agenda items like replacing stop signs and repairing potholes. But on that hot spring night, the room was packed; every seat was filled, so people lined the back wall and poured out the entrance into the small parking lot. The three elected township supervisors and a secretary sat facing the crowd. Near the front sat three out-of-town attorneys, their formal attire contrasting sharply with the denim wear of the town officials and residents. "I can still remember their navy blue suits and their polished brown shoes," says Judy Wanchisn, who has lived in the area nearly all of her 76 years.
The suits were there representing Pennsylvania General Energy (PGE), an independent oil and gas firm with wells throughout the greater Appalachian Basin. Earlier that spring—after what some local residents considered a pro forma process—the EPA had given the company permission to convert an existing gas well into a Class II-D wastewater injection well. Once completed, the well would insert as much as 30,000 barrels' worth of fracking wastewater 7,500 feet into the earth every month indefinitely. Thirteen hours a day, seven days a week, large trucks would descend on the rural town to deposit fracking wastewater from across the state.
Many Grant Township residents were not opposed to energy extraction, as evidenced by the conventional gas wells that dotted the landscape. But the wastewater well seemed like something entirely different—and more worrisome. There is no municipal water system in the township; each household relies on its own private well for water. Many people feared that the wastewater injections could poison their local aquifer, making their homes unlivable.
The Grant Township residents were now contemplating a radical move to protect their groundwater: a Community Bill of Rights that would ban such disposal wells within their jurisdiction. The proposed ordinance, however, would go far beyond the single matter of the injection well. The Community Bill of Rights would also seek to establish the township's right to self-government ("all power is inherent in the people," the ordinance text read) while recognizing that "all residents of Grant Township, along with natural communities and ecosystems within the Township, possess the right to clean air, water, and soil."
Emotions were electric in the crowded, stuffy room as the discussion of the Community Bill of Rights began. Fred Carlson, one of the elected supervisors, addressed the PGE attorneys directly. "The only reason I can see that you gentlemen are here is that Grant Township is a very small township," he said. "That's the reason we're being picked on. . . . And we don't want to be the suckers to hold all of this type of water."
The suits did little to dispel Carlson's feeling that his community was being bullied. "If it goes to court—and I don't want to saber-rattle here—there's a possibility the township could be required to pay our attorney fees if you lose, and you don't want that to happen," one of the corporate lawyers said.
For nearly an hour, the Grant Township residents aired their concerns about the proposed well. If it leaked—as other such wells located around the country had—it could jeopardize their groundwater. The regular deliveries of wastewater would involve a surge of heavy truck traffic in a community that doesn't have a single stoplight.
Despite their promises not to saber-rattle, the corporate lawyers threatened legal action if the Community Bill of Rights was approved. "You will get sued, and you will lose," a PGE attorney said.
Carlson turned to his neighbors and asked for a show of hands from those in favor of the Community Bill of Rights. Palms were raised around the room; the vote was nearly unanimous. Carlson eyed the attorneys. "Our ordinance is passed," he said. "You boys know where we're at. If there's a problem, go at it."
Wanchisn's daughter, Stacy Long, a graphic designer who was an ordinary constituent on that night (now she's an elected township supervisor), remembers the feeling of opposition and community spirit. "Everybody was just like, 'Sue us? What are you going to do? Take away garbage day?'" she says. "We are in a cinder block building in the middle of nowhere. What do you think you're going to take from us?"
At the same time, there was a presentiment that the vote in favor of the Community Bill of Rights was just the beginning of what promised to be a long storm. On that night, resident Bill Woodcock was sitting next to Carlson's wife, Sue. Woodcock remembers that she turned to him and said, "Well, now we're in for it."
GRANT TOWNSHIP IS LOCATED in west-central Pennsylvania, about an hour-and-a-half drive from Pittsburgh. The township is 27 square miles of rolling hills, green fields, and woodlots of eastern hardwood forest. "Nature at its finest" is how Woodcock describes the area. "This is a very quiet and peaceful place to live." Little Mahoning Creek, a popular fly-fishing spot for brook trout and home to the rare eastern hellbender salamander, weaves through the landscape. In the late 18th century, a village on the Mahoning was a trading post used by the Senecas and English and French trappers. The creek's name was originally Mo-hul-buc-ti-ton, meaning "where we abandoned our canoes."
According to the most recent census, a scant 741 people reside in Grant Township, almost all of them white. In the 2016 election, Donald Trump carried Indiana County—home of the township and the birthplace of Jimmy Stewart—by a two-to-one margin. Locals who have been involved in the long-running campaign against the PGE wastewater injection well say that the issue transcends partisan politics; opposition to the disposal well isn't anything more than common sense. "There's no public water here," says Jon Perry, Woodcock's spouse, who today is the township chairman. "If these people lose their water, their homes are worthless, their land is worthless."
The first unconventional gas well employing hydraulic fracturing techniques was drilled in Pennsylvania in 2004, marking the start of the fracking boom in the Marcellus Shale, the oil-and-gas-rich geologic formation that stretches from New York to Ohio. The novel extraction method was accompanied by a serious side effect: the millions of gallons of wastewater produced by each gas well. Initially, the gas industry sent the toxic water to municipal sewage-treatment plants. The EPA eventually banned the practice because of the heavy metals, chemicals, and other contaminants entering public water systems. In one incident, in 2008, the drinking water for nearly 350,000 people in communities along the Monongahela River near Pittsburgh was contaminated, an episode the EPA deemed "one of the largest failures in US history to supply clean drinking water to the public."
For many years, the Pennsylvania frackers sent the wastewater to injection wells in Ohio. Eventually, the fracking companies began looking for wells in Pennsylvania, closer to the shale fields. "Pennsylvania wasn't prepared," says John Quigley, who served as the secretary of the Pennsylvania Department of Environmental Protection (DEP) from 2015 to 2016 and before that headed the state's Department of Conservation and Natural Resources. "Pennsylvania has been playing catch-up from the get-go with this industry. Developments in the industry always far outpace the state government's ability to respond, understand, and regulate."
Even as the fracking industry was booming, a series of budget cuts were undermining the state's ability to oversee the new gas wells. In 2003, the DEP had an annual budget of about $245 million; a decade later, the DEP budget was $125 million. In the midst of a "sharply increased demand for services," Quigley says, "Pennsylvania and the DEP do not have the resources to do their job."
When PGE proposed the wastewater injection well, DEP officials told the Grant Township supervisors that there was nothing to worry about. But the locals had reasons for mistrust: They had heard about fracking-related earthquakes in Ohio and Oklahoma. For Wanchisn and many other locals, the biggest fear was contaminated groundwater. "You don't shit where you eat or drink," she recalls thinking when she first learned about the wastewater-well proposal.
Before the injection-well proposal, Wanchisn, whose family has roots in the area going back to the late 19th century and owns 315 acres, had been settling into a quiet retirement after a long career as an elementary school teacher. "I was enjoying my life, always gardening," says Wanchisn, who speaks with equal parts passion and patience, a trait honed during her years as an educator. "I went out with my friends. I was very active. And then this thing happened. And it was just hell. Awful."
Wanchisn's life of tending her flowers and doting on her grandchildren quickly transformed into the life of an activist. She began studying case law, the technicalities of Class II injection wells, and the so-called Halliburton loophole, a provision in a 2005 federal energy bill that allowed fracking companies to bypass the Safe Drinking Water Act. With Stacy Long and her husband, Mark, and Bill Woodcock, Wanchisn formed the East Run Hellbenders Society, a nonprofit environmental group (named after the local salamander) focused on assisting the township supervisors with stopping PGE's injection well.
The group soon made contact with the Community Environmental Legal Defense Fund, a small public interest group that for close to 25 years had been working with communities across the country to pass radical self-governance and rights-of-nature ordinances. The Hellbenders wanted help in drafting an appeal to the permits the fracking company had been granted by the EPA. The staff at the defense fund had different ideas.
Chad Nicholson, an organizer with CELDF, remembers that his first encounter with Wanchisn was "a tough conversation." Nicholson told her that his organization believed it was a waste of time to try to prevent the wastewater well through the usual regulatory and legal challenges. "It's been 20 to 30 years of losing in the traditional appeal way," he told her.
"It was kind of the epiphany moment for [CELDF], in the late '90s and early 2000s, of seeing things over and over again just getting dumped on communities against their will, and at that point communities were asking the very simple question 'Why can't we just say no to this stuff?'" Nicholson says by way of explaining CELDF's theory of change. "There were literally people pulling out their copies of the Pennsylvania Constitution, citing Article 1, Section 2: 'All power is inherent in the people.' So why is it that people don't seem to be making any decisions that are meaningfully affecting the future of their communities?" (While some grassroots activists applaud CELDF for its aspiration to be, in its words, a "resistance movement focused on driving rights for local self-determination and nature into the highest levels of law," the organization has faced criticism even among environmentalists for its controversial strategies and tactics, which can leave communities exposed to significant liability.)
Nicholson explained the different routes available: Do nothing and let the well happen, proceed with the usual environmental appeals, or just say, "No, we're not going to accept this." Nicholson said that if the township pursued the third option, CELDF would help draft a local ordinance that would simply outlaw the injection well.
Wanchisn was sold. She took the idea to the township supervisors, telling them, "I think this is the only way it's going to work." Under CELDF's guidance, the Grant Township supervisors drafted the Community Bill of Rights ordinance that was approved that steamy June night in 2014.
Just as it had threatened, the gas-extraction company took the township to court. Three months after the Community Bill of Rights was passed, PGE filed a lawsuit in federal court charging that the ordinance infringed on the company's "constitutional and state law rights." The suit claimed that "Grant Township intended to deny corporations, such as PGE, their legal and long-standing Constitutional rights, including, but not limited to, their rights under the First, the Fifth, and the Fourteenth Amendments and the Contract Clause of the United States Constitution."
The Pennsylvania Independent Oil and Gas Association, an influential industry lobbying group, soon filed a motion to intervene on PGE's behalf. In response, the East Run Hellbenders filed their own motion to intervene on the township's behalf. In the spirit of the rights-of-nature provisions of the town's new ordinance, the Hellbenders filed their motion jointly with Little Mahoning Creek itself.
The battle lines over the wastewater well had been dramatically redefined. What had started as just one small town versus one midsize gas company was now a fight between the waters of west-central Pennsylvania and the state's entire oil and gas industry.
THE PGE ATTORNEY who during the tense June 2014 town meeting predicted that his company would sue and that Grant Township would lose the case was, in a way, prescient. In October 2015, a federal magistrate, Susan P. Baxter, struck down the town's ban on wastewater disposal and ruled that the Hellbenders and the creek couldn't be parties to the suit, since their interests were already represented by the township (though the judge made no ruling on whether the watershed had its own legal rights). "Although the defendant wishes it were not so," Baxter wrote, "the development of oil and gas (which necessarily includes the management of waste materials generated at a well site) is a legitimate business activity and land use within Pennsylvania."
That might have been the end of the story. But the Grant Township residents, led by the Hellbenders, decided to fight on. In fact, they had already been planning to. While the township's attorneys filed a federal court appeal to try to reverse Baxter's decision, the township supervisors, with CELDF's support, laid out a strategy to establish Grant Township as a "home rule" municipality and assert its self-governance under state law.
Pennsylvania law contains a provision that allows the residents of the state's towns and counties to vote to govern themselves with significant latitude. In Pennsylvania, the concept of home rule goes all the way back to the commonwealth's founding by William Penn and was originally intended to ensure that the state government wouldn't override local rights. Some 70 jurisdictions in the state—including Philadelphia and Pittsburgh—enjoy home rule, which allows a community to pass whatever laws it likes, with the exception of those that condone activities explicitly prohibited by state government. Pennsylvania maintains the ability to overrule a municipal law if the government believes that law infringes on the state's power.
The community decided to craft an especially broad home rule charter, one that would not only assert its self-governance but also—in a repeat of the Community Bill of Rights—outlaw wastewater injection wells and recognize the rights of area ecosystems. Section 104 of the Grant Township home rule charter reads, "All residents of Grant Township, along with natural communities and ecosystems within the Township, possess the right to clean air, water, and soil, which shall include the right to be free from activities which may pose potential risks to clean air, water, and soil within the Township, including the depositing of waste from oil and gas extraction."
The supervisors, with help from the Hellbenders, began campaigning throughout the community to build public support for the new charter. "This is about saving ourselves, saving our water," Long would preach to friends and neighbors. "Asserting our right to say to the state and federal government that we have a right to say no to a polluting company."
On November 3, 2015, the township residents voted on the ballot measure. The final tally had the local citizens approving the home rule charter by a two-to-one margin. At the same time, Long was elected as a township supervisor, as was Perry. Wanchisn proudly heralds the measure as "the first rights-based charter in the United States." Woodcock points out, "This is something that was due process, put to a vote, and democratically adopted."
Though it was politically ambitious, the home rule charter also served the narrower purpose of buying Grant Township residents some time. In the fall of 2014, just as the federal case was beginning to wend its way through the court system, the DEP issued a permit for the wastewater well. But then Long and Wanchisn asked the agency to look into whether the injection well conformed to the state's Clean Streams Law and raised questions about the risk of injection-related earthquakes—forcing the DEP to take the unprecedented step of revoking the permit. Meanwhile, federal magistrate Baxter addressed Grant Township's new charter, writing, "The Home Rule Charter is not before this Court. If a litigant wishes to challenge the provisions of Grant Township's Home Rule Charter, it must do so through a separate lawsuit." As the calendar flipped over to 2017, the fate of the proposed well remained in legal limbo.
Then, in March 2017, the DEP took the offensive. The agency reapproved the PGE wastewater well in Grant Township along with a second well in Highland Township. The DEP also filed a pair of lawsuits against the two townships, arguing that their home rule charters illegally obstructed the state's existing policies, including Pennsylvania's 2012 Oil and Gas Act. (In 2016, voters in Highland Township had approved a home rule charter very similar to Grant Township's.)
Grant Township soon filed a countersuit, claiming that it had no choice but to prohibit the injection well since, in the township's view, the state environmental protection agency had failed in its duty to safeguard the area's natural resources. In an 18-point declaration filed with the court as part of the countersuit, Perry wrote, "DEP has failed . . . egregiously in its public trustee duties regarding the regulation of the oil and gas industry."
"Yes," Perry says, with incredulous sarcasm unmistakable in his voice, "[we're being] sued by the protection agency for having the audacity to try to protect the water system of the town."
IN OCTOBER 2019—more than five years after the Grant Township residents began their campaign to stop the wastewater well—a three-judge Pennsylvania Commonwealth Court panel in Pittsburgh heard arguments in the case between the DEP and the township. For its part, the state argued that "if Grant wishes to attempt prohibiting oil and gas waste fluid disposal within the township, it must use only lawful mechanisms in this effort, and it did not do so in this case." The township responded that its home rule charter is perfectly legal under Pennsylvania's Environmental Rights Amendment (ERA), passed in 1971, which declares, "The people have a right to clean air, pure water." The township further argued that the "DEP has failed, and continues to fail, to protect and advance these rights, and has therefore violated its public trustee duties to the people under Article I of the Pennsylvania Constitution."
"We're asking the court to deny [the DEP's] motion so we can proceed to actually talking about our constitutional claims," says Grant Township attorney Karen Hoffman. "This case is the first time there has been a home rule municipality, or charter, that is enforcing the rights under the ERA. So it's a novel issue for the court." (As of press time, the court had yet to issue a ruling.)
Many of the Hellbenders had traveled to Pittsburgh for the proceedings; Long was there, along with her mother and Woodcock and Perry. The battle against this one wastewater project had involved unforeseen challenges. Earlier in 2019, a US federal court had ordered Grant Township to pay $103,000 in attorney fees accrued by PGE (Grant's total yearly budget is $140,000; the judgment is currently in mediation). Yet the Hellbenders expressed no regrets.
For Wanchisn, the years-long effort is proof of the power of persistence. "I don't think they expected us to fight this long," she says. "In that [June 2014 township] meeting, I think they expected to scare the hell out of us." The way Long sees it, Grant Township's case is important because it could be an inspiring example to other communities trying to stop similar oil and gas projects. "Our victory would be yours," she says. "We're not just doing this to shut this down in Grant Township."
Perry adds, "We've never wavered in our thoughts about this. The idea was to keep the injection well out and protect our constituents' water—and that's still the way it is."
True enough. Today, there is still no fracking wastewater injection well in Grant Township, Pennsylvania.
This article appeared in the January/February 2020 edition with the headline "Nevertheless, They Persisted."