American Oil and Gas Reporter - December 2015 - 49

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SpecialReport: Natural Gas White Papers

'Rights' Ordinances Wrong Way To Go
By Kevin Moody

WEXFORD, PA.-The Pennsylvania
Independent Oil & Gas Association intervened in Pennsylvania General Energy
(PGE) v. Grant Township to try to put a
stop to the so-called community bill of
rights ordinances championed by the
Community Environmental Legal Defense
Fund (CELDF). These tactics are intended
to strip corporations of all rights granted
to "persons" under state and federal constitutions, and prohibit corporations from
challenging the validity of the ordinances,
bestow personal "rights" on natural communities and ecosystems, and invalidate
state and federal government permits and
laws inconsistent with the ordinances.
Part of CELDF's sales pitch to communities is offering free legal services if
the ordinance is challenged. We think
that is a risky pitch because CELDF's
ordinances have never survived a legal
challenge. Also, if the community loses,
it can have serious consequences when
the plaintiff seeks damages and legal
costs. That happened in Mora County,
N.M.
PGE has asked the district court involved in the Grant Township case to
award it damages and attorney fees, and
a Nov. 13 Pittsburgh Business Times article quotes a CELDF spokesman saying:
"Any damages awarded by the court
against the township would have to be
paid by the township."
In the Elk County, Pa., community of
Highland Township, where Seneca Resources is challenging one of CELDF's
ordinances, some residents and officials
have expressed concern publically that a
loss could bankrupt the township.
PIOGA is concerned with the unlawful
disruption of the legitimate business operations of its members by these community bills of rights, and also with their
proliferation across the country because
that helps give CELDF and the ordinances
publicity. CELDF appears to welcome
this publicity to help advance its cause
for constitutional change, which is what
is necessary to establish its asserted right
to local self-government-as Section 8 of
the Grant Township ordinance acknowledges.
CELDF's continued efforts, and municipalities' willingness to even consider
or adopt these ordinances in the face of

all adverse judicial decisions, shows that
CELDF is not stopping. PIOGA is trying
to get as many definitive judicial decisions
in Pennsylvania as it can, even though
the primary effect of the decisions so far
seems to be even more notoriety for
CELDF's ineffective tactic, not deterrence.

More To Come
Despite this significant win, the case
is not over. Grant Township has filed for
reconsideration, asking the court for a
decision on whether the people of the
townships have the constitutional right
to local self-government that the ordinance
relies on, or alternatively, whether the
Pennsylvania Constitution's Environmental Rights Amendment provides the constitutional right to local self-government
necessary to authorize the ordinance.
PIOGA's intervention complaint asserts
there is no such constitutional right to
local self-government, and the federal
judge denied Grant Township's counterclaim because the township failed to establish that such a right existed.
For its part, PIOGA has filed a request
for correction and amendment concerning
the judge's reason for not ruling on PGE's
Oil and Gas Act pre-emption claim. The
motion asks the U.S. district court to
correct the erroneous statement in its decision that the Oil and Gas Act preemption provision of Act 13 (Section
3302) was declared unconstitutional by
the Pennsylvania Commonwealth Court
as part of its decision on remand in Robinson Township v. Commonwealth of Pennsylvania.
Another twist came with the Nov. 3
general election, when Grant Township
voters approved a home rule charter that
includes the same ban on "the depositing,
disposal, storage, beneficial use, treatment, recycling, injection, or introduction
of materials including, but not limited
to, brine, 'produced water,' 'frack water,'
tailings, flowback, or any other waste
or by-product of oil and gas extraction,
by any means," as did the ordinance
that was held to be unconstitutional.
The township's adoption of home rule
could mean it takes a little longer to resolve the case, but the end result will be
the same.
A home rule community can't violate
the U.S. or Pennsylvania constitutions,

and the statute enabling home rule contains
a host of state law prohibitions and limitations on what a home rule community
can do.
The constitutional provisions that invalidate the community bill of rights ordinance also invalidate Grant Township's
home rule charter. CELDF needs constitutional change to establish the right to
local self-government that its ordinances
rely on, but misusing these local communities, ordinances and home rule charters
is not a proper way to try to get it.
❒

KEVIN
MOODY

Kevin Moody is general counsel
for the Pennsylvania Independent Oil
& Gas Association. He has both public
and private sector experience, having
worked at the Pennsylvania Department of Revenue and Public Utility
Commission, as well as mid-major
law firms based in Philadelphia and
Pittsburgh.

KFG Petroleum Drills
Pair Of Discovery Wells

NATCHEZ, MS.-KFG Petroleum
Corp. drilled the Drouet Poole Estate No.
1, a discovery oil well in Franklin County,
Ms., to a total depth of 6,800 feet and
found 10 feet of McShane Oil Sand, says
Robert A. Kadane, KFG president.
Kadane confirms production casing
has been set for a completion attempt.
The company has a 12 percent working
interest in the well before payout and a
24 percent after payout.
In addition, Kadane states the company is drilling its Second Creek prospect
in Adams County, Ms. The Stockfelt Unit
No. 1 is set to be drilled to a depth of
4,600 feet to test the Third Wilcox formation. KFG notes it has a 15 percent working interest in the well, jumping to a 21.5
percent working interest at payout.
❒
DECEMBER 2015 49

American Oil and Gas Reporter - December 2015

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