Over the last decade, fracking has dramatically shifted the world energy market, slashing oil prices and shifting the U.S. from the position of an oil importer to that of major oil producer. For many environmentalists, however, fracking is a major concern for water quality. Meanwhile, lower prices for oil and natural gas have stymied efforts to transition to an alternative energy future. Environmental groups are increasingly switching to tenuous lawsuits in a desperate attempt to block fracking and are doubling down on the strategy even as judges rebuke their efforts.
The new legal strategy continues the broader trend of attempting to push environmental legislation down to the state and local level, where smaller groups of people can have greater influence. This is a radical inversion of previous strategies, which looked to use the courts to challenge how agencies issued permits and passed decisions.
“The new legal movement pushes a strategy fundamentally different from that of most environmental organizations. Instead of working through normal legal channels of permitting and suing, the new strategy seeks to enshrine a doctrine recognizing the fundamental right of community self-governance over their own natural resources,” explains Mark Hand of Think Progress.
A key component of this approach is a curious legal strategy which attempts to argue that ecosystems have rights. Lawyers making the argument contend that if corporations have rights, then so should forests and streams. They compare it to children, who cannot file a lawsuit on their own, but can have guardians appointed to file one on their behalf. These environmental lawyers, including, most prominently Thomas Linzey of the Community Environmental Legal Defense Fund (CELDF), argue that natural ecosystems should be recognized as “people” that also have protected rights to flourish.
In practice, these legal slights of hand do little to stop energy development and frequently end up costing businesses and taxpayers tens of thousands in legal costs. More recently, courts have begun to push back on these strategies. In Pennsylvania, a federal judge issued a striking condemnation from the bench in one case, recommending that Linzey be referred to the Disciplinary Board of the Supreme Court of Pennsylvania.
In her opinion, Judge Susan Baxter lambasted the attorneys for pursuing a lawsuit which they understood was legally tenuous.
“This Court has determined that Attorneys Linzey and Dunne have pursued certain claims and defenses in bad faith. Based upon prior CELDF litigation, each was on notice of the legal implausibility of the arguments previously advanced,” she wrote.
The judge also ordered CELDF to pay $52,000 in legal fees to the company they had sued. That firm had been trying to drill a fracking waste injection well.
Reactions to the judge’s decision show that even now, opinions are heated. Supporters of the energy industry as a whole see her decision as a necessary step towards normalcy.
“Courts are increasingly running out of patience with these novel legal approaches to stop energy development. These are frivolous lawsuits that cost taxpayers both in time and actual resources,” Jackie Stewart, Ohio Field Director for Energy in Depth tells InsideSources. She characterizes the decision as part of a broader trend of failures from CELDF.
“Activists are turning to the courts after suffering huge legislative defeats across the country. In Ohio, CELDF has lost 85 percent of its attempts to pass fracking bans. In Youngstown, they have lost six consecutive times,” she continued.
Meanwhile, environmental groups see the judge’s decision as another sign that the legal system is stacked against them. In a statement after the decision, Linzey described himself as a victim of the system.
“This is about the oil and gas industry not being satisfied with going after the municipalities, but now trying to go after the lawyers,” he said.
On the whole, CELDF has had little success blocking energy development. Despite spending years attempting to pass a fracking ban in Youngstown, for instance, the group was not successful in the end. Supporters of energy development hope that decisions like Judge Baxter’s will help to quell frivolous lawsuits which cost companies time and money.
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