Could the Ohio River have rights? A movement emerges, testing the power of local control

Could the Ohio River have rights? A movement emerges, testing the power of local control

Chad Nicholson sees both promise and risk in rights-of-nature ordinances.

One afternoon in April, Nicholson stood at the Braddock, Pennsylvania, “beach,” the site of a small cement dock for boats to come out of the river, adjacent to U.S. Steel’s Edgar Thomson Steel Works. U.S. Steel has faced public criticism and multiple lawsuits over the harm of pollution and violation of air quality permits. Plans to allow fracking at the plant also have drawn criticism, although officials in nearby boroughs both support and oppose the move.

“The system is too cooked. We can’t tweak it,” Nicholson said, looking out at the Monongahela River. “We have to create something new.” Nicholson, a Pennsylvania-based organizer for CELDF, believes rights-of-nature laws could be that something.

He notes, though, that a small borough such as Braddock might not be well-positioned to pursue a hypothetical rights of nature legal battle. Such battles are costly, both monetarily and in community morale. When towns are considering an ordinance, he asks, “Are you prepared to go bankrupt?”

Grant Township in Indiana County is concerned about that prospect. In an attempt to stop a frack-waste injection site, township supervisors in 2014 adopted a community bill of rights containing rights-of-nature language. Shortly after, Pennsylvania General Energy [PGE] filed a lawsuit that settled in April, after five years of litigation. Grant Township owes PGE just more than $100,000 in compensation for legal fees the corporation spent suing the township.

“We don’t have it,” said Stacy Long, vice chair of the Grant Township Board of Supervisors and board member of the East Run Hellbenders Society, an environmental group formed to oppose drilling. “I offered them a $250 Sheetz card,” she said, chuckling.

In a June 2015 Reuters article about the township’s efforts, Linzey was quoted saying that bankruptcy may be a necessary consequence for a municipality to push the rights-of-nature movement forward.

Long said she feels Pennsylvania’s current environmental law has failed her community and the natural environment: “You have to wait to get polluted or poisoned, and then you can sue, but not before that.”

In October, the DEP presented opening arguments in its lawsuit against Grant Township for its attempts to limit oil and gas fracking. The DEP asserted the township’s efforts were in direct opposition to the DEP’s permitting process.

Lauren Fraley, the southwest regional community relations coordinator for the DEP, said the agency cannot comment on ongoing litigation. She referred to filings in the case in which DEP affirms the rights of municipalities to use zoning restrictions to promote environmental health. She also noted that if Pennsylvania residents believe DEP protections are insufficient, they have a right to advocate for change.

“Where citizens and local officials believe that existing regulation is insufficient, they have a few options: lobby state and federal representatives to pass laws providing more legal authority to regulate an activity; pass lawful ordinances within local authority to address the issues of concern (where the local government holds authority and is not preempted), and petition the regulatory authorities directly, like EPA, DEP, PUC, etc. to seek to have enhanced rules created,” Fraley wrote in an email.

Thomas Hoffman, a clean water organizer for the Pennsylvania chapter of the Sierra Club, noted the importance of political organizing.

“The current strategy of the environmental movement is too reliant on legal strategy,” he said.

For instance, he criticizes the Allegheny County Sanitary Authority [ALCOSAN] for not doing enough to address flooding and industrial runoff in its plans to invest $2 billion to reduce sewage contamination in local rivers. ALCOSAN repeatedly has said that its scope is limited to reducing sewage overflows. To advocate for more, the Sierra Club’s Clean Rivers Campaign has a political strategy that includes public education, walking tours, petition signing and lobbying.

In Linzey’s view, rights-of-nature laws are about more than court battles.

“What you’re seeing is not just a legal strategy, it’s an organizing strategy,” he said. Ultimately, Linzey doesn’t want to only see laws change. “It’s not just a seismic shift in the law that has to happen,” he said. “It’s a seismic shift in thinking about nature that has to happen.”

The Heinz Endowments provided funding to the Community Environmental Legal Defense Fund. The Heinz Endowments provides unrelated funding to PublicSource.

“Good River: Stories of the Ohio” is a series about the environment, economy and culture of the Ohio River watershed, produced by seven nonprofit newsrooms. To see more, please visit ohiowatershed.org.