Judge Lets Fracking Opponents Fight On

HARRISBURG, Pa. (CN) - The Gas Drilling Awareness Coalition sufficiently pleaded First Amendment violations in its lawsuit against an American-Israeli anti-terror think tank that contracted with Pennsylvania's Office of Homeland Security to keep tabs on environmentalists' protests against natural gas drillers, a federal judge ruled.

U.S. District Judge William Caldwell denied qualified immunity to defendant James Powers Jr., the former director of Pennsylvania's Office of Homeland Security, who allegedly approved the contract.

But Caldwell dismissed the Coalition's request for an injunction prohibiting the defendant Institute of Terrorism Research and Response (ITTR) from acting as a state agent to surveil groups engaging in peaceful First Amendment conduct in Pennsylvania.

The alleged contract has been canceled and the requested injunction is therefore "overreaching," the judge found in an 18-page opinion filed Monday.

According to the Coalition's September 2010 lawsuit, the group was swept up "in a prolonged and secret campaign of domestic surveillance" after Powers gave the green light to a $125,000 contract for the Institute to "regularly surveil and report on potential terrorist threats against ... [Pennsylvania's] critical infrastructure."

That surveillance was published in the form of tri-weekly "Pennsylvania Intelligence Bulletins" which "were routinely transmitted to Marcellus gas drilling 'stakeholders'" and to law-enforcement agencies to keep them abreast of "plaintiff's campaign against their unregulated drilling plans," according to the complaint.

The surveillance allowed "Marcellus gas drilling companies to plan against and counter plaintiff's protected speech," the Coalition claimed. Marcellus refers to the Marcellus Shale, a vast rock formation containing enormous natural gas reserves.

The shale has drawn the frenzied attention of drillers in recent years, who want to use a controversial rock-fracturing technique called "fracking" to extract the gas.

Many environmentalists oppose the method, claiming it can poison water supplies.

Caldwell ruled that the surveillance scheme alleged by the Coalition is sufficient for the group to proceed on its First Amendment claims because the information gathered allegedly was shared with groups that are not law-enforcement agencies.

"The facts alleged in plaintiff's complaint are sufficient to make a claim for violation of freedom of speech and association under the First Amendment," Caldwell wrote.

"Supreme Court and Third Circuit precedent make clear that the gathering of information regarding individuals' peaceful activity is not justiciable if shared only among law enforcement agencies. The sharing of such information with others, however, 'at a minimum, show[s] immediately threatened injury to plaintiffs by way of a chilling of their rights of freedom of speech and associational privacy.'" (Citations omitted.)

"The dispersal of such information may dissuade some individuals from becoming members of plaintiff, or may cause some to resign membership," Caldwell found.

The Coalition also may proceed with its First Amendment retaliation claim.

"Plaintiff participated in protected First Amendment activities, including speech and association. It aimed to educate the public about the dangers of unregulated gas drilling. Plaintiff asserts that, in response to these activities, ITRR, pursuant to its contract with Powers, began surveillance of its activities, reporting them to non-law enforcement companies and individuals. This is enough to make a claim for retaliation," the judge ruled.

But an injunction prohibiting further surveillance is inappropriate because the contract appears to have been canceled.

"Since the contract between Powers and ITRR was canceled, there is no threat of future surveillance by these defendants. Plaintiff's request for injunctive relief to prevent defendants from conducting surveillance and reporting on that surveillance is moot and will be dismissed," Caldwell wrote.

He dismissed the Institute from the civil rights case, finding that the group was performing services as a private contractor, not as a state actor, and therefore is not a proper defendant for a Section 1983 claim.

But he refused to dismiss the Coalition's request for a court order directing defendants to destroy any Bulletins that are still available on a state-government website.

"The claim does not overreach, because it requests that only information concerning plaintiff be removed from a website within the control of defendants. This request for injunctive relief will not be dismissed," the judge ruled.

The Coalition claimed it suffered a due process deprivation in the form of reputational damage after it was classified as a terrorist group.

The group said potential supporters decided not to join because it was labeled a potential security threat and was targeted for government-funded surveillance.

Caldwell dismissed that claim, finding that "the classification of the plaintiff as a potential threat to critical infrastructure did not result in the loss of employment for individual members of the group."

He gave the Coalition 20 days to amend the due process claim.

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