In a memorandum opinion dated March 2, Commonwealth Court upheld the right of Grant Township in Indiana County to defend its ordinance prohibiting the disposal of waste from oil and gas wells in an injection well within the municipality using the state's Environmental Rights Amendment.
The Township adopted an ordinance prohibiting the depositing of waste from oil and gas extraction in June of 2014. In 2015 the township adopted a Home Rule Charter prohibiting the same thing.
In March 2017 DEP issued a permit for an injection well in the Township and filed an action in court challenging Grant Township’s authority to prohibit drilling wastewater injection wells in its jurisdiction arguing provisions in the state Oil and Gas Act and the Solid Waste Management Act preempt their authority.
In a May 2018 decision, the Court sustained several of DEP objections, but the case continued on the issue of enforcing the constitutional rights under the Environmental Rights Amendment.
On that issue, the Court said in this decision, “In sum, the Township seeks to prove that hydrofracking and disposal of its waste is so dangerous to the environment as to be in violation of the ERA [Environmental Rights Amendment], and thus that the statutes upon which DEP bases its preemption claims are constitutionally invalid.
“While the Township may or may not be able to prevail on its constitutional claims, this Court has already ruled that it may attempt to do so in defense of DEP’s lawsuit, and this application for summary relief [by DEP] is nothing more than a collateral attack on that decision.”
The case will now proceed on the issue of whether the Environmental Rights Amendment can be used as a basis of the Township’s prohibition and whether the preemption provisions in the Oil and Gas Act and the Solid Waste Management Act are constitutional as applied in this case.
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[Posted: March 12, 2020] PA Environment Digest
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