It all started, as most of these things do, with a company’s application for a permit.
In May of 2013, Pennsylvania General Energy (PGE) applied for a permit from the Environmental Protection Agency to convert one of its gas extraction wells in Grant Township, Indiana County, PA, into an injection well. The company wanted to dump frack wastewater from its other wells. According to their own estimates, PGE proposes to dump more than 151 million gallons of frack wastewater into Grant Township over a ten year period — wastewater that the company’s own sampling reveals will contain toxic and radioactive materials such as barium, radium, strontium, and toluene.
The people of Grant Township rely on private wells for drinking water. They decided to stop the project. Working with their elected officials, they adopted a law recognizing the rights of residents to clean air and clean water, and banned frack wastewater injection wells as a violation of those rights. They understood that the corporation could sue the Township for its adoption of the law. Thus, the Township included provisions elevating residents’ rights above the “rights” routinely claimed by corporations.
Predictably, the company sued, claiming that its “rights” had been violated by the Township and that the Town- ship lacked the power to adopt the law in the first place.
In its defense of the Township, CELDF lawyers argued that the people of Grant possess a constitutional right of local community self-government, and that the company’s assertion of its “rights” to override Grant Township constituted an unconstitutional violation of that right of self-government.
Thus, CELDF lawyers contended that it wasn’t the Township that had violated the corporation’s “rights,” but the other way around.
Of course, corporations have long used these types of lawsuits to “chill” communities from interfering with company plans, and from making those arguments in court. Lately, however, that “chilling” effect hasn’t been working. As more and more communities have come into the cross-hairs of corporations proposing pipelines, frack wells, and a variety of other projects, community members are advancing democratic and environmental rights to stop them.
And so the corporations have begun to come after the lawyers, believing that if they can scare the lawyers off, they will deprive the communities of legal representation.
Three years after the company sued Grant Township, it filed a motion for sanctions against CELDF lawyers Thomas Linzey and Elizabeth Dunne, seeking over half a million dollars from the two of them. The company asserted that CELDF’s arguments in the case — that the community has a constitutional right to govern itself, and a right to stop these types of harmful projects — was frivolous. Corporate attorneys asserted that the arguments were advanced solely to harass the company and drive up its litigation costs.
On January 5, 2018, Judge Susan Baxter granted part of PGE’s motion, awarding $52,000 in fees against attorneys Linzey and Dunne. Holding that “settled law opposes [their] arguments” and that the “community rights” doctrine had been “discredited and previously litigated,” she ordered the attorneys to pay part of the company’s original request for sanctions.
Judge Baxter’s ruling is unusual. Attorneys are, and have always been, allowed to argue for good faith changes to the law. In fact, that’s part of how major strides were made in prior people’s movements where rights-based legal arguments were advanced to end segregation, gain women’s right to vote, and gain the right to same sex marriage. It is no coincidence that as people reclaim Community Rights and recognize Rights of Nature, corporate and institutional hostility has escalated. That escalation, while challenging, is evidence of the movement’s success in its own right.
CELDF views the sanctions as part of a new strategy by companies to punish lawyers for representing communities like Grant. In a statement put out by Grant Township, the Board of Supervisors declared that:
“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.
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. This is bigger than just Grant Township, and we want others to join this fight by standing up to pro- tect their communities. We’re not going anywhere.”
Attorneys Linzey and Dunne will be appealing the sanctions award to the Third Circuit Court of Appeals.
This piece was originally published at https://celdf.org/2018/05/when-good-faith-is-punishable-by-sanctions/.