Environmental group protesting natural gas drilling can move forward with civil claim

By Jon Campisi | Dec 16, 2011

An environmental protest group can move forward with its federal lawsuit against an American-Israeli anti-terrorism think tank that had been contracted by the Pennsylvania Office of Homeland Security to surveil domestic groups protesting against natural gas drilling in the commonwealth, a federal judge has ruled.

In September 2010, The Gas Drilling Awareness Coalition filed a civil action against the Institute of Terrorism Research and Response Foundation, James F. Powers, and Michael Perelman over a contract that would enable the organization to conduct surveillance operations on the environmental protest group and “report potential terrorist threats against Pennsylvania infrastructure,” according to background information in the ruling by U.S. District Judge William W. Caldwell.

The Gas Drilling Awareness Coalition filed a complaint alleging violations of right to free speech, retaliation for exercise of First Amendment rights, violation of the due process clause of the Fourteenth Amendment and state constitutional violations.

The defendants, including Powers, the former director of the Pennsylvania Emergency Management Agency’s Office of Homeland Security, had subsequently filed a motion to dismiss the suit.

In Caldwell’s Dec. 12 ruling, filed at the U.S. District Court for the Middle District of Pennsylvania, the judge issued a mixed verdict.

Caldwell granted Power’s motion to dismiss plaintiff’s request to enjoin defendants from performing surveillance of individuals or groups engaged only in peaceful First Amendment conduct and from reporting such activities.

He also dismissed the plaintiff’s request for nominal damages in the amount of $125,000.

However, the judge would not grant qualified immunity to the defendants, specifically Powers, the man who allegedly approved the surveillance contract.

Caldwell ruled that the information compiled during the surveillance operation was apparently disseminated by Powers to third-party individuals and entities, thereby nullifying a qualified immunity claim.

One such entity was gas-drilling stakeholders. Another was an “individual member of the public.”

Because the information was given to those other than members of law enforcement, Powers cannot claim qualified immunity, the judge ruled.

“Third Circuit [court of appeals] precedent makes clear that the dispersal of information gathered through government surveillance to those outside law enforcement chills First Amendment rights,” the judge wrote. “In the light most favorable to the plaintiff, the dissemination to third parties, who may not be involved in law enforcement, was not reasonable under Third Circuit precedent.”

The judge would also not dismiss a request by the plaintiff for injunctive relief related to the information collected during the surveillance operations that is apparently still publicly available online.

“Plaintiff alleges that the surveillance bulletins are still available on the website of the Commonwealth, meaning the request to have them removed is not moot,” the judge wrote. “The claim does not overreach, because it requests that only information concerning plaintiff be removed from a website within control of defendants.”

And, perhaps most importantly, the judge allowed to stand a claim regarding freedom of speech violations.

“Plaintiff’s allegations are sufficient to make out a claim for relief and defendant’s motion to dismiss this claim must be denied,” the judge wrote.

Environmentalists, such as those comprising the coalition, oppose a method of extracting natural gas called hydraulic fracturing, also known as “fracking,” whereby a highly pressurized solution of water and chemicals is injected into the ground to help extract the gas.

Pennsylvania has become a battleground state in the matchup between the natural gas industry, which views gas drilling as a revenue generator and economic boon, and environmentalists who are concerned about the potential for groundwater poisoning through the fracking process.

Pennsylvania’s Marcellus Shale rock formation contains ample natural gas reserves.

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