Anti-Fracking Advocate Moves to Vacate Injunction Barring Her from Large Swaths of Her Home County

By Scott Michelman

Anti-fracking demonstration outside New York Governor Cuomo's office, Third Avenue, Manhattan, NY. 9 Oct 2012. (credit: Adam Welz/CREDO)

Anti-fracking demonstration outside New York Governor Cuomo’s office, Third Avenue, Manhattan, NY. 9 Oct 2012. (credit: Adam Welz/CREDO)

As reported by the Guardian and other news outlets, Cabot Oil and Gas Corporation is going to great lengths to keep Pennsylvania environmental activist Vera Scroggins out of sight and out of earshot. So much so that the company obtained an injunction barring Scroggins not only from Cabot-owned properties but also all properties in the county where Cabot has a lease to extract gas from under the surface of the land – a category that includes the homes of some of Ms. Scroggins friends; her grocery store, auto mechanic, rehabilitation center, and recycling center; and even the hospital closest to her home.

Does a gas company’s right to extract gas from under the surface of the land give it the right to dictate who comes on the surface, even for properties where the company has no active drilling operations? No, it doesn’t, asserts Public Citizen in a brief filed today in cooperation with Sayre, Pa., lawyer Gerald A. Kinchy and the ACLU of Pennsylvania. Furthermore, we argue, the injunction against Scroggins is overbroad and violates her constitutional rights to freedom of speech and freedom of movement.

Scroggins, who has lived in northeastern Pennsylvania’s Susquehanna County for more than 20 years, is a retired nurse’s aide and grandmother who is devoted to alerting the public about the dangers of the gas extraction process (often known as “fracking”) near her home. For several years, Scroggins has used photos and video to document the activities of the gas companies operating in the area, given tours to visitors to show them the affected sites, asked questions of gas company employees, testified before state regulatory officials, and protested the activities of the gas companies.

In response to her advocacy, last fall she was hit with a lawsuit from one of those companies, Cabot, which then obtained an injunction that bars her from a significant portion of her home county, even though Cabot never produced a lease showing it had the right to exclude her from the surface of properties where it has leased only the subsurface mineral rights. The injunction is far broader than anything allowed by the U.S. Supreme Court or Pennsylvania courts under the First Amendment or its Pennsylvania counterpart. The injunction bars Scroggins even from Cabot-leased lands on which no drilling operations are occurring, including businesses and government services open to the public. Under the constitutional right to freedom of movement, recognized by the Supreme Court and the U.S. Court of Appeals for the Third Circuit, the restriction on Scroggins must be narrowly tailored to meet significant objectives, yet Cabot has not explained how banning Scroggins from property it passively leases with no active surface operations is at all tailored to meet Cabot’s asserted interests in protecting its property, the safety of its drilling sites, or its interest in avoiding liability. In fact, Cabot has its own private security firm, Northeast Diversified Services, to protect the company’s operations from advocates like Scroggins; for more than two years, the security firm’s owner has testified, the firm has been tracking Scroggins’ movements “as they pertain to Cabot property.”

Scroggins was never given a list of the places she cannot go under the injunction, so she has had to spend hours at the county courthouse figuring out which lands are owned by or leased to Cabot. And it’s a lot of ground to cover: Cabot’s legal papers state that its leases alone cover more than 200,000 acres of land in Pennsylvania, “the majority of which are located in Susquehanna County.” (200,000 acres is equivalent to approximately 312 square miles.) Because of the injunction, Scroggins’ advocacy activities have been impeded and her freedom of movement curtailed, and she is anxious she will accidentally go where she is forbidden.

A hearing on Scroggins’ motion to vacate the injunction is coming up on March 24 in Montrose, Pa.

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Cross posted at Public Citizen: Consumer Law & Policy Blog