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David v. Goliath

A Tiny Pennsylvania Town of 700 People Declared War on the Fracking Industry in 2014. They’re Finally Getting Their Day in Court.

Grant Township has become the poster child for democracy and home rule. Its own state is fighting against it.

A church in Grant Township sits surrounded by rolling hills and a cemetery.
Mike Belleme
Grant Township

There’s no Main Street dotted with local businesses in Grant Township, a sparsely populated, densely wooded area comprising several communities in Western Pennsylvania. There’s no “Welcome” sign with an inspiring motto. There’s not even a yellow stripe on any of the roads. It’s “a very poor slice of the county,” in the words of Board of Supervisors co-chair Stacy Long, with a tax base that is “dwindling due to old age and drug abuse.” Like most of exurban Pennsylvania, it’s also Trump country: In stark contrast to the so-called “urban liberals” of Philadelphia and Pittsburgh, many area residents have long condoned, if not supported, domestic oil and gas extraction; oppose a ban on “fracking” in the state; and have a dim view of environmental regulation.

But something surprising happened after the Environmental Protection Agency approved permits in 2013 for the petroleum company Pennsylvania General Energy to place a fracking wastewater injection well in the area. Residents became a cause célèbre of progressive environmentalists by voting to create a Community Charter that, among other things, asserts the township’s right to create its own environmental regulations and bans injection wells within the township. “You will get sued, and you will lose,” PGE lawyers in crisp suits warned residents before the first vote in 2014, Aaron Skirboll reported for Sierra magazine. Residents voted almost unanimously in favor anyway. “Our ordinance is passed,” a township supervisor said to the corporate attorneys. “You boys know where we’re at. If there’s a problem, go at it.”

PGE did indeed sue, as did the state Department of Environmental Protection. Both parties argue that only the state—not any individual municipality—has the authority to regulate oil and gas development. Grant residents doubled down, filing a counterclaim against the DEP and voting to legalize nonviolent direct action against any state or corporate entity that infringes upon the community’s right to self-government. The message was clear: That injection well is going in over our dead bodies. Eight years on, the legal showdown seems headed for trial in Pennsylvania’s Commonwealth Court (a preliminary hearing occurred in April). What’s at stake is the well-being of not just Grant’s 700 residents but democracy itself.

In his landmark study Democracy in America, written over 185 years ago, the French intellectual Alexis de Tocqueville observed that Americans’ fear of government tyranny led citizens of all stations in life to display an unusual zest for self-governance. Instead of vesting their elected state and federal representatives with a monopoly over political power, many towns—especially in New England—favored direct democracy, where residents assembled to deliberate and vote upon community-specific matters (e.g., taxes, municipal budget priorities, land-use laws).

If the essence of democracy in America is that people have a say over, and must consent to, policies that affect their lives, then community self-rule is its most ideal form. Towns across the Northeastern United States, perhaps most notably (and occasionally disastrously) in New Hampshire, carry on this bottom-up democratic tradition through so-called Open Town Meetings. In all, 31 states guarantee some degree of community autonomy, or “home rule,” in their state constitutions. In Pennsylvania, towns and counties are empowered to propose and pass whatever laws they like, provided they don’t directly contravene established state laws. Over 70 jurisdictions across the state, including Philadelphia and Pittsburgh, have opted into this right by voting to adopt a home rule charter.

One might expect Republican governors and legislators to champion home rule. As political theorist Theda Skocpol observes, it has historically been conservatives who pine for the purported golden era of Jefferson, “when local civic voluntarism solved the country’s problems apart from—actually instead of—extralocal government and politics.” So it’s deeply ironic that Republican politicians in ostensible home rule states, from Texas to Pennsylvania, have waged what author and reporter Zachary Roth calls a “war on local democracy” by passing laws that prevent cities and towns from enacting policies that conservative elites don’t like, such as gender-neutral bathrooms, bans on plastic bags, or bans on natural gas hookups in new buildings.

Not long after the fracking boom began, many red-state governors and legislatures rushed to strip municipalities of their traditional right to control the placement of oil and gas infrastructure in their community. After the city of Denton, Texas, voted to ban fracking within city limits, the state made it illegal for municipalities to keep the industry out. Pennsylvania passed Act 13, which exempted fracking from local zoning ordinances, thereby forcing communities to allow oil and gas development even in areas they deemed unsuitable for industry (e.g., residential and rural zones). Republican politicians have effectively stifled grassroots democracy, even as they have framed (to great success) federal oversight of fracking as government overreach.

It was precisely Grant residents’ feeling that they had no voice regarding the construction of a toxic waste dump that led them to team up with the environmental advocacy group Community Environmental Legal Defense Fund, or CELDF, and pursue a home rule charter. “We’re tired of being told by corporations and our so-called environmental regulatory agencies that we can’t stop this injection well,” township supervisor Stacy Long complained to the nonprofit investigative news outlet Public Herald in 2016. Jon Perry, her colleague on the board, added, “Should a polluting corporation have the right to inject toxic waste, or should a community have the right to protect itself?” Long’s mother, Judy Wanchisn, observed that it didn’t matter whether residents were Democrats or Republicans. They united behind a home rule charter that banned injection wells because they “didn’t want anyone messing around with their water” and viewed the government’s approval of the permit without their consent as a violation of their rights. “We don’t have an injection well problem,” Wanchisn has said, “we have a democracy problem.”

Pennsylvania’s Supreme Court ruled in December 2013 that Act 13’s preemption of local zoning is an unconstitutional usurpation of municipal sovereignty. But the state Department of Environmental Protection’s lawsuit against Grant—which is currently winding its way through Commonwealth Court—maintains that enabling the “reasonable development” of oil and gas is a “statewide concern,” and therefore locales like Grant cannot pass bans on fracking infrastructure because such policies flout state law.

Grant seems to have a strong case that its home rule charter is a valid enforcement of the Pennsylvania Constitution’s Environmental Rights Amendment (Article 1, Section 27), which grants citizens “a right to clean air, pure water, and to the preservation of the natural, scenic, and esthetic values of the environment.” Indeed, Grant’s counterclaim argues that its charter was necessary because the DEP has failed to uphold Article 1, Section 27. This thesis gained credence when a statewide grand jury investigation concluded in September 2020 that the DEP was negligent in setting and enforcing rules regarding fracking and had not done enough to “properly protect the health, safety and welfare” of state residents.

Intriguingly, if the judges in Pennsylvania allow the case to proceed to a full trial, it may be one of the first instances in which a court will be asked to interpret the scope and meaning of a state constitution’s right to clean air and water. It may also be the community rights movement’s last best hope for preserving grassroots democracy against the tyranny of fossil fuel interests and their conservative allies in state government.