Judge fines environmental attorneys $52,000 for ‘frivolous’ injection well suit

Reid Frazier

Recent Stories

Reid R. Frazier is an energy reporter for The Allegheny Front, a Pittsburgh-based public media outlet covering the environment in Pennsylvania. His work has aired on NPR and Marketplace.

January 12, 2018 | 5:51 PM

A federal judge has ordered a pair of attorneys for an environmental group to pay $52,000 in legal fees to an energy company because, the judge said, they filed a “frivolous” legal challenge to a fracking waste injection well in Indiana County.

U.S. Magistrate Judge Susan Paradise Baxter of the Western District of Pennsylvania ruled the attorneys, Thomas Linzey and Elizabeth Dunne, should pay part of Pennsylvania General Energy’s (PGE) legal fees for advancing a “discredited” legal argument that had already been defeated in prior decisions. In addition to the fine, the judge referred Linzey to the state Supreme Court Disciplinary Board for additional discipline.

The case is centered on a 2014 ban and a subsequent municipal charter adopted by Grant Township that banned fracking wastewater injection projects. In crafting the charter, the township used a legal argument called the community rights defense.

In that defense, the township argued its residents had a “right to stop that which harms them,” said Linzey, of CELDF, a Franklin County-based nonprofit legal defense organization that has mounted similar challenges around the country.

In April, after being sued by the state Department of Environmental Protection, the township agreed not to enforce its ban against DEP while the court case proceeds. (Another municipality, Highland Township, Elk County, agreed to do the same.)

PGE, which has obtained EPA and DEP permits to build the well, which will permanently sequester potentially toxic wastewater from fracking operations into a deep rock formation, had sought full reimbursal for legal fees — over $50,000 — incurred fighting the ban.

In making her decision, Judge Baxter cited cases CELDF argued, and lost, from 2005, 2006, and 2009, and found “identical arguments asserted” as in the Grant Township case.

“The continued pursuit of frivolous claims and defenses, despite Linzey’s first-hand knowledge of their insufficiency, and the refusal to retract each upon reasonable request, substantially and inappropriately prolonged this litigation, and required the Court and PGE to expend significant time and resources eliminating these baseless claims,” Baxter wrote.

But Linzey remained defiant.

“She said we’ve tried this argument and it hasn’t been successful, and therefore the only reason to raise it now is to harass the other side,” Linzey said. “If the law worked that way, the law would never change.”

Linzey said bringing court cases like this would be the only way for municipalities to challenge the status quo in oil and gas development.

“The people of Grant have no recourse because state and federal government have already issued their opinion on it. They’re looking at 30,000 barrels of frack waste a year (in their community) for 10 years — and they’re being told by the courts not only can’t you say ‘no,’ but we’re going to sanction your lawyers so no other communities say ‘no’ to these things.”

In a statement, the Grant Township supervisors called the decision “astonishing, but not surprising.”

“Our Township has been sold out and ignored by every level of government to date,” wrote the supervisors. “It’s Grant Township’s hope that our attorneys will wear this slap as a badge of courage, just as any front line veteran would wear a scar.”

It goes on:

We understand that the system of law that we live under doesn’t recognize the right of the people who live here to stop those projects which will harm us. It doesn’t recognize that we have a democratic right to say “no”, which is why we’ve worked with CELDF to advance arguments that we have a constitutional right to govern our own community, and that companies like PGE shouldn’t have more rights to decide what happens here than we do.

A PGE official said the company is happy with the ruling.

“We’ve consistently maintained that CELDF’s continued defense of the community rights defense was without foundation in the law and we’re pleased with Judge Baxter’s decision,” said Karen Thomas, vice president of human resources at PGE.

Kevin J. Moody, General Counsel for the Pennsylvania Independent Oil & Gas Association, which was also involved in the case, called the decision “a win for the rule of law over people who want to take the law into their own hands instead of trying to change the law according to the rules the people set forth in their constitutions.”

The ruling enters another chapter in the ongoing legal question of how much municipalities are allowed to regulate oil and gas activities.

Ross Pifer, director of Penn State’s Center for Agricultural and Shale Law, said sanctioning lawyers for “frivolous” lawsuits was “not common.” He said the sanctions could give communities pause before pulling the trigger on similar ordinances banning oil and gas activities.

“It emphasizes there are some problems with that type of ordinance,” Pifer said. “There still is a role for municipalities to regulate oil and gas, but they need to be in compliance with state laws that are addressing these issues. Municipalities only have authority to act as it’s been granted to them by the state.”

This story has been updated to clarify that Grant Township agreed not to enforce portions of its ban against DEP while the agency’s court case proceeds.