A federal judge has sanctioned two attorneys for advancing “frivolous” arguments on behalf of the Pennsylvania community attempting to ban oil and gas wastewater injection wells. The legal arguments rejected by the judge closely resemble the basis for an anti-fracking ordinance in Athens and another proposed for Athens County.
The resemblance is not a coincidence.
The two sanctioned attorneys, Thomas Linzey and Elizabeth Dunne, work on behalf of the Pennsylvania-based Community Environmental Legal Defense Fund. The CELDF has worked both with Grant Township, Indiana County, Pennsylvania and Athens city and county, Ohio, to pass laws that assert the authority of local community rights over corporate rights and state and federal laws that regulate oil and gas drilling and other industrial activities.
The CELDF has worked with numerous communities in Ohio, Pennsylvania and other states to pass similar laws. In Ohio, no civil court to date has endorsed the CELDF’s legal approach any more than federal Magistrate Judge Susan Paradise Baxter did in Grant Township, Pennsylvania.
In a decision issued on Friday, Judge Baxter granted sanctions against Linzey and Dunne in the amount of $52,000, to be paid within 120 days to Pennsylvania General Energy Co. (PGE). Baxter also ordered that her decision be forwarded to the Pennsylvania Supreme Court’s disciplinary board “with a request to determine appropriate disciplinary measures, if any, to be imposed upon attorney Linzey…”
In a Rolling Stone magazine article on the ruling, Linzey said he intends to appeal the sanctioning to a Circuit Court in Philadelphia.
The $52,000 represents 10 percent of more than $500,000 in attorneys’ fees and costs that PGE claims it spent while challenging a community bill of rights ordinance that Grant Township enacted in 2014, with guidance and legal underpinning from the CELDF. The ordinance bans oil and gas wastewater injection wells, an issue that’s also of major concern to many Athens area residents.
In ordering sanctions, Magistrate Judge Baxter wrote, “The court does not derive pleasure in the task before it today… However, the legitimate pursuit of justice imposes important obligations on counsel to ensure that the Court is not a mechanism of harassment or unbridled obstruction. 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. Accordingly, sanctions are imposed and justified in this instance.”
The CELDF on Friday posted a news release on its website critical of both PGE’s request for sanction against the Fund’s attorneys and Judge Baxter’s decision to grant them.
“Not satisfied with suing the community and questioning its authority to protect the people and environment of Grant Township from injection wells,” the release said, “the company decided to punish its lawyers by seeking monetary sanctions against them.”
CELDF Associate Director Mari Margil was quoted in the release: “At a time when Americans more and more are looking to the courts for reason and justice, today we find neither, as corporate forces once again have been able to wield our institutions of government to punish those working to elevate the rights of communities over fossil-fuel corporations.”
Magistrate Judge Baxter in a previous decision found that Grant Township’s ban on injection wells violated PGE’s constitutional rights, the release said. The case is scheduled for a jury trial in May on remaining, unresolved claims, at which time, the CELDF release said, “PGE will seek hundreds of thousands of dollars from the township, claiming that it suffered harm because the company has been prevented from dumping frack waste in a residential area next to the Township’s sole source of drinking water.”
Dick McGinn, who has led efforts in Athens city and county to pass community bill of rights ordinances or amendments, also criticized the Pennsylvania federal judge’s decision.
“Obviously the judge has little interest in civil rights,” he wrote in an email. “Her chosen legal path is to favor the ‘rights’ of corporations to trample on civil rights. The fight will continue. The people will win in the end.”
McGinn, in his capacity as a leader of the Athens County Bill of Rights Committee, issued a news release Tuesday celebrating the fact that Athens City Council had codified language in the Community Bill of Rights passed by voters in 2014, “exactly as voted on by the people; and includes the ballot language, too.” This is the same CELDF-originated legal reasoning that the federal judge in Pennsylvania rejected in the Grant Township case.
Athens Law Director Lisa Eliason was asked Tuesday if she felt concerned about the Athens law considering the sanctioning and referral to the Supreme Court of the CELDF attorneys in the Pennsylvania case. “I do not believe the act of codifying the Bill of Rights Initiative Petition exposes the city of Athens to the type of liability set forth in the Pennsylvania case,” she responded. “The city of Athens Bill of Rights Initiative Petition passed by an overwhelming majority and represents the ‘home rule’ will of the people.”
JACKIE STEWART, WHO DIRECTS the oil and gas industry-funded outreach group, Energy in Depth (EID) Ohio, issued a statement on Monday, praising the federal judge’s decision.
“The Community Environmental Legal Defense Fund has been targeting communities all over the country for years with misinformation campaigns and has proven to be nothing more than a litigation factory, as this recent federal judge has confirmed,” Stewart wrote. “EID has been cataloging the extensive costs incurred in towns where CELDF operates, and we are pleased that a federal judge has now recognized that ‘such litigation creates enormous expense to parties and taxes limited judicial resources.’
“CELDF has made it clear that its goal is to ‘bankrupt’ towns it operates in, and now a federal judge has finally exposed how incredibly deceptive this group is. A prime example is Youngstown, where CELDF has cost taxpayers over $187,000 and voters have rejected the group's Community Bill of Rights six consecutive times."
In her decision, Magistrate Judge Baxter described the community bill of rights arguments advanced by the CELDF on behalf of communities to prevent oil and gas operations as “discredited” and “previously litigated.”
She noted that her court had ruled in a previous case involving Linzey and CELDF that their proposed community bill of rights for a community “suffered numerous legal deficiencies.”
Despite knowing this, Baxter wrote, Grant Township’s ordinance was adopted and the CELDF defended it by “pressing forward with a counterclaim and defenses remarkably unchanged from prior CELDF litigation seeking to overturn longstanding corporate rights and ignoring the established preemptive effect of valid federal and state permits and environmental regulations.
Pennsylvania has similar statutes to Ohio, which grants regulatory primacy to the Ohio Department of Natural Resources over oil and gas activities. This means that in both states, the state regulations trump local ordinances where oil and gas drilling, storage or waste injection wells are concerned. Proponents of this set-up say that allowing a patchwork of differing oil and gas regulations across a state such as Ohio places an unfair barrier to successful oil and gas development.
Up to now, no company has sought to undertake oil and gas activities in Athens that would trigger enforcement under the city’s Community Bill of Rights and Water Protection Ordinance. As a result, no legal challenges have been mounted either.
Repeated efforts to place a charter amendment before Athens County voters, which would include community bill of rights language, as well as provisions banning injection wells and the use of local water for oil and gas drilling, have been blocked in the courts and/or the state Secretary of State’s office.