Tuesday, July 3, 2018

Federal Court Overturns Dismissal Of Wayne County Landowner Challenge To DRBC's Shale Gas Drilling Moratorium

The U.S. Third Circuit Court of Appeals Tuesday overturned the dismissal of a Wayne County landowners’ challenge to the shale gas drilling moratorium adopted by the Delaware River Basin Commission in 2010 and remanded the case back to U.S. District Court for additional hearings.
The Court did not take a position on the issue of fracking, but remanded the case on the narrow issue of the meaning of the word “project” in the case Wayne Land Mineral Group V. DRBC & Delaware Riverkeeper Network.
The Court said, “Because we conclude that the meaning of the word “project” as used in the [DRBC] compact is ambiguous, we will vacate the order of dismissal and remand the case for fact-finding on the intent of the compact’s drafters.”
Click Here for a copy of the opinion.
In March of 2017 U.S. Federal District Court threw out the lawsuit by the group of Wayne County landowners who said the Delaware River Basin Commission lacks the authority to review and approve natural gas facilities on land owned by the group.
This is the same lawsuit that three Pennsylvania state Senators-- Sen. Joe Scarnati (R-Jefferson), Sen. Lisa Baker (R-Luzerne) and Sen. Gene Yaw (R-Lycoming)-- attempted to intervene on the side of the landowners last October, however, their request was denied by Federal Court in January 2017.
DRBC is now considering a formal ban on fracking in the Delaware River Watershed, but has no fixed timetable for bringing the ban to a vote.  It is now reviewing some 8,687 comments it received on the proposed ban.
The 2010 moratorium remains in effect.
Maya van Rossum, the Delaware RiverKeeper, issued this statement in response to the ruling-- “The Delaware River Basin Commission has broad and irreplaceable authority to protect the water resources of the Delaware River watershed.  DRBC is obliged to protect the water resources of the watershed for the benefit of all watershed users and communities, and for preserving water resources to protect both present and future needs.  
“Science, facts and experience demonstrate that drilling and fracking for shale gas has significant, substantial, consumptive and devastating impacts on water resources and that the substantial, devastating and irreparable harms inflicted are not preventable by regulation, they are an inherent and unavoidable result of this highly industrial extractive process.  
“Science and experience also demonstrate that allowing drilling and fracking for shale gas prevents safe and sustainable use of water resources for present and future uses and generations.  
“Drilling and fracking for shale gas is a major threat that is properly the subject of a DRBC prohibition.  
“We are confident that the District Court and the Court of Appeals for the Third Circuit will, in the final analysis, both defend the DRBC’s right and responsibility to address the threat of drilling and fracking for shale gas in the Delaware River watershed, including by placing a complete and permanent ban on all aspects of drilling and fracking for shale gas within the watershed.”
Jordan Yeager, lead counsel for the Delaware Riverkeeper Network, said-- “The Court of Appeals recognized the importance of these issues and is giving the parties the opportunity to establish a full record on remand to the District Court.  We are confident that when a full record is established that the courts will conclude that the DRBC has not only the authority to regulate fracking and related infrastructure, but the absolute duty to do so.”
Additional Background
Just before adjourning for the summer, the Senate Environmental Resources and Energy Committee June 12 reported out Senate Bill 1189 (Baker-R-Luzerne) that would require compensation for landowners by the Delaware River Basin Commission if a permanent fracking ban is adopted by the Commission.
The bill is now in the Senate Appropriations Committee.
The same week, the House State Government Committee heard testimony from a variety of witnesses about the potential impact of a permanent fracking ban by the Delaware River Basin Commission, including a suggestion a special water user fee be imposed on users within the watershed to pay Wayne County landowners for their oil and gas rights.
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