Amity and Prosperity_One Family and the Fracturing of America

by Eliza Griswold

  Stacey didn’t know what to make of Beth’s story. “Maybe they put a hit on me,” Beth said. Was this a random accident, or something more ominous? “I feel like I’m not safe. I don’t know what they’ll do. I mean maybe it’s just a freak thing.” This happens in movies, Stacey thought, not in Amity, not on our road. Had someone tried to scare Beth? Had some gashole made a mistake? Stacey didn’t think so. Well that is bullshit because no one target practices in the middle of deer season, she wrote in her journal.

  The full metal jacket ended up in the possession of state troopers. Several months later, they called Beth and told her that she could retrieve it: they were closing the case without further investigation. Beth was predictably irate. At the time, I was reporting in Amity, so she asked if I’d like to go with her to state police headquarters in Waynesburg, not far from the border with West Virginia, to pick it up.

  The trip took us south along Amity Ridge Road, past Dean’s Laundromat and Mankey Brothers garage; past Stacey’s parents’ house and the old post office; past Rinky Dinks and Shelly’s lawn, studded with logs holding hives of feral bees. When we reached the Ruff Creek filling station, the white-painted cinder-block hut where she and Stacey, like everyone else, came to haul water, she showed me how hauling worked. On the side of the building, a sign read WATER VENDING MACHINE. It was coin-operated, and next to the slot for quarters there was a thick black hose. A line of silver water tankers was turning in and out of the lot. One had the name Shipman Sanitary on the side. It belonged to the Shipman family. “That’s the one that got in trouble,” Beth said. She rolled down the window to yell to the driver and ask how much the water was these days. “Twenty-five cents for fifty gallons,” he called back.

  “Thank you!” she called. At least the price hadn’t changed.

  I needed to ask her about some of the rumors I’d heard over the years, about the several lawsuits in which she and John were involved, and most notably whether or not she’d shot that man in California. I wasn’t sure how she’d react. Sitting together, both of us captive in her 2011 Nissan Rogue, it seemed the time to ask.

  Yes, there was trouble in her past, and it began in California, where she’d fled an abusive ex-husband. Then it followed her back to Washington County, where trouble went by the name of Thomas Jeffrey Gorby, who was serving a life sentence in the next county. Gorby had been a friend of Beth’s ex-husband, and when the two men had a falling-out about money, Gorby kicked down their door in Washington when Beth was home alone. He’d tried to rape her, then shot her in the head before fleeing. But the bullet only grazed her skull, she said, steering with one hand and pointing out the scar with the other. Beth’s ex was also a problem, and she’d struggled to leave him. “That’s why I can sympathize with people who’ve been abused. You get hit so many times you don’t know if they’re going to come back and really do you in the next time,” she said. John Voyles, who’d known Beth since the two were teenagers, stepped in at first as a friend to protect her. In his quiet way, hammering horseshoe nails into crosses while sipping on beer in the garage, John had saved her. He was one of the few people who seemed to understand Beth, and he was able to withstand her ferocity, maybe even loved her for it.

  When we reached the state police station and went inside, the state trooper, who looked to be smirking, told her the case was closed and handed her a plastic baggie containing the flattened ingot. Beth took the bag and left, feeling she wasn’t important enough for one more official to do his appointed job. “I don’t believe any government official from the DA’s office to DEP to EPA and FBI to the attorney general has planned on doing anything to help us in any way on the protection of us being U.S. citizens with rights and dignity,” she told me.

  PART 3

  THE RIGHT TO CLEAN AIR AND PURE WATER

  We seared and scarred our once green and pleasant land with mining operations. We polluted our rivers and our streams with acid mine drainage, with industrial waste, with sewage. We poisoned our “delicate, pleasant and wholesome” air with the smoke of steel mills and coke ovens and with the fumes of millions of automobiles. We smashed our highways through fertile fields and thriving city neighborhoods. We cut down our trees and erected eyesores along our roads. We uglified our land and we called it progress.

  —HERBERT FINEMAN, SPEAKER OF THE PENNSYLVANIA HOUSE OF REPRESENTATIVES, IN A SPEECH TO THE PENNSYLVANIA LEGISLATURE, 1971

  27 | THE RIGHT TO CLEAN AIR AND PURE WATER

  The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

  —ARTICLE 1, SECTION 27, OF THE PENNSYLVANIA CONSTITUTION

  On the morning of October 17, 2012, John Smith donned a red tie and spiked his short hair to a peak with gel. He repeated to himself the finer points of zoning law in the crowded hallway outside the courtroom in downtown Pittsburgh. Smith rarely rehearsed his arguments; addressing judges and juries didn’t tend to make him nervous. On this morning, however, he would argue before the Pennsylvania Supreme Court for the first time in his career. His parents were coming to watch him, also a first. Yet it wasn’t his parents’ presence or the court’s status that made him jumpy. Instead of speaking on behalf of a private client or a single township, he was arguing on behalf of all the citizens of Pennsylvania, explaining to the court why the new oil and gas law violated their constitutional rights. This felt like a sizable responsibility.

  The hearing was scheduled to take place in downtown Pittsburgh’s City-County Building. That morning, before the courtroom doors opened, the hallway was packed with observers. Most were activists carrying signs with sayings like PROTECT OUR LOCAL RIGHTS. Among those eyeing the protesters with distaste were three older women in blue jeans and fleeces.

  “Anyone has the right to challenge the law,” one, Elizabeth Cowden, said to me. “But I’m shocked that this is a party atmosphere.” Cowden, the township supervisor from Cecil, supported the new law and opposed Smith’s challenge. “Washington County is a very poor county,” she said. Extraction was the necessary solution to their woes, and natural gas, in particular, offered Washington County a chance to escape a grinding downturn. “Our county is now the third fastest growing in the state. Our economy is booming.” She and the two women with her were angry that John Smith had taken the case. It was Smith’s fault, one of Cowden’s friends told me, that the oil and gas industry was delaying paying Cecil Township its impact fee, as punishment for his action. “Cecil just lost out on a $249,000 impact fee, and our roads are deplorable,” one said.

  The courtroom doors opened and the rowdy crowd filed in. Amid their cheering, Chief Justice Ronald Castille looked over the courtroom from behind tortoiseshell horn-rims and ordered the activists to leave their signs outside. If they wouldn’t be quiet, he barked, he’d eject them from the proceedings. Castille grew up fishing and camping as a Boy Scout and military brat on remote U.S. bases from Florida to Japan. Then he followed his father into the military to serve in Vietnam. “Vietnam is a beautiful place as long as they’re not shooting at you,” he told me later. “I was there before DuPont sent Agent Orange over.” He lost his right leg while dragging a fellow U.S. Marine from a Vietnamese rice paddy and was awarded two Purple Hearts and a Bronze Star. The Supreme Court’s panel of six justices traveled between Pittsburgh, Harrisburg, and Philadelphia and sat only six times a year. The oldest in the nation, the court dates back more than 328 years, its roots established under William Penn.

  The first case that morning involved an Erie County magisterial district judge who had given the finger to a fellow driver after the Pittsburgh Steelers lost a game, then brandished a handgun out his car window.

  Seamus McCaffery, a bald supreme court justice from Philadelphia b
est known for building a court and a jail under the Eagles’ football stadium for unruly sports fans, made a joke: “Being from Philadelphia, we’re used to our team losing. Could this be attributed to the Steelers’ loss, which is unusual?” The activists packing the courtroom laughed. Later, McCaffery would be suspended amid a state scandal: he had sent obscene emails to fellow government officials as part of a long-standing ring of lewd jokers.

  Smith had already heard much of the argument the state and the DEP were putting forth that day: the state had the right to allow drillers to drill where they wanted, and little towns couldn’t block them. State rights trumped local ones every time. Legally, this was a defensible position, but Smith wasn’t arguing that local rights were always more powerful, only that zoning came with certain responsibilities to protect citizens’ welfare under the constitution. Act 13 would force his clients to breach them.

  Matt Haverstick, an attorney hired to represent the commonwealth, stood first. He focused on the financial benefit that drilling brought with it: “the development of a natural resource that has profound economic and job promise for all Pennsylvanians, not just some, but for all.” As Haverstick laid out his argument, one justice, Max Baer, took issue.

  “Counsel,” Baer asked, “isn’t the whole purpose behind zoning to protect neighbors, protect everybody from unreasonable uses? So if you buy a home in a residential neighborhood, you’re assured your government is going to protect you to some extent, stopping somebody from building a steel factory beside it?”

  Smith found Baer’s line of inquiry heartening. But Baer was also a liberal Democrat and not one of those Smith worried about winning over. It did seem to Smith, as he tried to gauge the responses of the justices on the bench, that the others also seemed skeptical of the commonwealth’s position. After three-quarters of an hour, it was Smith’s turn to face the panel of judges. He boiled down his argument to its essential question: “Can I use my property in a way that’s injurious to my neighbor?” That, he went on, the constitution wouldn’t allow. What’s more, under the law, zoning brought with it a constitutional duty for little towns to protect the “health, safety, and welfare” of their citizens, which they couldn’t guarantee if a gas well could be drilled three hundred feet from a playground.

  After Smith finished, Jon Kamin, the attorney who had represented South Fayette Township, in addition to strip clubs, made the case that aspects of Act 13, including the physician’s gag rule, rendered the new Oil and Gas Act a “special law”—a law that applied only to a single industry. The state couldn’t create laws like this, according to a constitutional amendment designed to rein in cronyism between the state and the railroads one hundred years earlier. If Act 13 was a special law, Kamin argued, then it also violated the Fourteenth Amendment of the U.S. Constitution, which mandates that everyone be treated equally.

  Finally Jordan Yeager, the civil rights lawyer from the eastern part of the state, put forth his argument, that the new law violated Article 1, Section 27, of the state constitution, the Environmental Rights Amendment. This was the liberal argument dismissed by the lower court. Yeager invoked the ancient notion of public trust, that some natural resources belong to the people, and the government as custodian has a duty to protect them.

  Chief Justice Castille said little that day in court. At one point, however, he turned to Smith to ask, “Did you say there’s something in this act that makes the municipality have to pay the other side’s legal fees?” John replied, “Yes, Your Honor.” Castille told me later that he found this provision particularly egregious. Little townships would be up against the industry’s expensive lawyers and looking at $800,000 bills for one small fight. As he saw it, due process was all about fairness, and that was unfair.

  The argument lasted nearly two hours, which was unusually long. Afterward, Kamin took the Smiths to lunch at the Carlton, where Pittsburgh’s lawyers, judges, and bankers did business over crab cakes.

  * * *

  On December 19, 2013, in a 4–2 decision, the Pennsylvania Supreme Court found in favor of Smith and his team of challengers. A typical supreme court opinion might run about 20 pages; Castille’s went on for 162. He affirmed the decision of the lower court, agreeing with Smith that the law violated people’s constitutional rights to protect their property, as well as a township’s responsibility to protect the health and welfare of its citizens. He also questioned the constitutionality of the physician gag rule, sending it back to the lower court to reexamine. He did the same with the provision allowing homeowners to settle over ruined water with oil and gas companies without notifying their neighbors. Treating people who relied on private wells differently from those who had access to public water was unfair, he wrote.

  Most surprisingly, Castille’s argument relied on Article 1, Section 27. “It is not a historical accident that the Pennsylvania Constitution now places citizens’ environmental rights on par with their political rights,” he wrote. Water and air belonged to the public trust—to the people of Pennsylvania.

  Castille’s landmark decision went further. From timber to coal, he detailed the successive waves of industrialization that had laid waste to the commons for the past four hundred years. “Approximately three and a half centuries ago, white pine, eastern hemlock, and mixed hardwood forests covered nine-tenths of more than twenty million acres. Two centuries later, the state experienced a lumber boom that, by 1920, had left much of Pennsylvania barren.”

  Environmental disasters continued to harm not only the landscape but also the health of its citizens, he wrote. “The overwhelming tasks of reclamation and regeneration of the Commonwealth’s natural resources, along with localized environmental incidents (such as the 1948 Donora smog tragedy in which twenty persons died of asphyxiation and 7,000 persons were hospitalized because of corrosive industrial smoke; the 1959 Knox Mine disaster in which the Susquehanna River disappeared into the Pittston Coal Vein; the 1961 Glen Alden mine water discharge that killed more than 300,000 fish; and the Centralia mine fire that started in 1962, is still burning, and led to the relocation of all residents in 1984) has led to the gradual enactment of statutes protecting our environment.”

  All of these disasters, he went on, helped establish the need for environmental protections and laws. In Pennsylvania, the most significant was the Environmental Rights Amendment, which passed into law in 1971 with overwhelming support from both parties. Its author was a Pennsylvania legislator and ardent conservationist named Franklin Kury. He wrote the amendment in response to the destructive legacy of coal. But he credited its success with the country’s growing environmental consciousness born out of the work of Rachel Carson and her fellow Pennsylvania native Edward Abbey, the author of Desert Solitaire and The Monkey Wrench Gang. As Carson was raised in the shadow of a glue factory, Abbey grew up among farmers living alongside the ravages of coal. Abbey wrote, “A civilization which destroys what little remains of the wild, the spare, the original, is cutting itself off from its origins and betraying the principle of civilization itself.”

  Beyond Castille’s opinion, the historical moment at which the amendment came into being bears noting. According to Kury, it wasn’t only books like Carson’s and Abbey’s that made his amendment popular. Television also played a role in birthing an environmental consciousness in Pennsylvania and across the United States. Much as pictures of African American children cowering before hateful white mobs helped change the nation’s civil rights laws, footage of mile upon mile of rust-red rivers so polluted they caught fire helped earn the Environmental Rights Amendment such widespread support that it swept through the legislature with nearly unanimous approval from both parties.

  On the floor of the Pennsylvania legislature, Herbert Fineman, the Speaker of the House, spoke of its import in the argot of the times: “The measure of our progress is not just what we have but how we live, that it is not man who must adapt himself to technology but technology which must be adapted to man.” Forty years on, this question applied
to the technological revolution made possible by fracking: Did Stacey and her children have to adapt to technology by leaving their farm, or did fracking have to adapt to the communities that preceded it? The Pennsylvania Supreme Court came down firmly in favor of individual rights and community, over the rights of the extractive industry.

  * * *

  The language of the opinion stunned Jordan Yeager and John Smith. Neither had allowed himself to imagine such a sweeping success on any grounds, and certainly not on the basis of the Environmental Rights Amendment. Now, for the first time in Pennsylvania history, the amendment had actual teeth. The level of popular support was startling. One day, after the local paper published the fact that the state had spent more than $700,000 thus far in attorneys’ fees to defend Act 13, Smith opened a letter and found a twenty-five-dollar check from a concerned citizen. She wanted to help compensate him on behalf of the people of the commonwealth. John sent the check back with a thank-you note. The victory also alarmed the state. Governor Corbett said, “We must not allow today’s ruling to send a negative message to job creators and families who depend on the energy industry.” A spokesman for the Marcellus Shale Coalition, an industry trade group, said the decision represented “a missed opportunity.”

  When the Smiths had the chance to read the decision, Kendra called Stacey. On page 49, Castille recounted the ordeal of “a homeowner, a nurse who leased her mineral rights.” She took a minute in the break room. So much of her struggle had revolved around the fear of not being believed. Now the highest court in Pennsylvania had used her sworn testimony to strike down the law.