NRDC Files Brief In Wayne County Landowners Court Challenge To DRBC Authority To Regulate Fracking

On May 11, the Natural Resources Defense Council, on behalf of itself and Catskill Mountainkeeper, filed an amicus brief in support of the Delaware River Basin Commission and the Delaware Riverkeeper Network, who are defending the Commission’s ability to regulate hydraulic fracturing to develop Shale natural gas in the Delaware River watershed.

The Delaware River Basin Commission has had a temporary ban on fracking in the basin since 2010 while it develops regulations on the process.  

DRBC proposed a permanent ban on this one process for developing Shale gas in November 2017 for public review.  In its last public statement on the proposal in April 2018, the Commission said it had no timetable for finalizing the fracking ban.  Read more here.

The Wayne Land and Mineral Group, a group of landowners in Wayne County, Pennsylvania, want to allow fracking in the River Basin. They have sued the DRBC, claiming it lacks authority to regulate this dangerous industrial activity. 

In 2017, a federal court threw out a similar landowner challenge to DRBC’s authority, but the case was revived on appeal by the landowners in 2018.

Republican members of the  Pennsylvania Senate and House have sought to intervene in the challenge supporting the Wayne County landowners in two ways.

Senate Joe Scarnati (R-Jefferson),  President Pro Tempore of the Senate, Gene Yaw (R-Lycoming), Majority Chair of the Senate Environmental Resources and Energy Committee, and Lisa Baker (R-Luzerne) have requested to intervene directly in the federal court case, a highly unusual move.

Their initial attempts were turned down by the Court but they appealed the 2019 ruling.  Read more here.

Republicans in both the Senate and House have introduced legislation that unilaterally declares a fracking ban a taking of property and would require the Delaware River Basin Commission to directly compensate landowners for their loss of property value if a permanent fracking ban is enacted by the Commission.

At a House Committee hearing in March of 2019, supporters of this legislation said the bill would require DRBC to pay landowners up to $10 billion, a significant portion of which would have to be paid by Pennsylvania taxpayers since the state is part of the DRBC.

A suggestion was made to put a fee on each household to pay the Wayne County landowners for their lost property value at another House hearing.  Read more here.

Senate Bill 305 (Baker-R-Luzerne) was reported out of the Senate Environmental Resources and Energy Committee in June of last year and is now in the Senate Appropriations Committee.

House Bill 827 (Fritz-R-Wayne) has been on the House Calendar for action after being reported out of the House Environmental Resources and Energy Committee in May of 2019.

The Brief

In their brief, the NRDC and the other groups disagree with the Wayne County landowners saying  the Delaware River Basin Commission was established to regulate water supply, water quality, flood mitigation, and water management in the watershed. 

Under the terms of the Delaware River Basin Commission Compact, the Commission can, among other things, regulate any project with a substantial effect on the water resources of the River Basin. The Compact defines a “project” as any activity for the “utilization, control,” or “management” of water resources.

The brief explains that water is a central component of fracking, and that the utilization, control, and management of water resources is a necessary part of this process.

The brief makes two basic points--

First, water is a necessary and primary component in fracking. Water is the primary component in fracking fluid, making up over 98 percent of the toxic fluid cocktail that is injected underground during the fracking process. 

Fracking permanently removes up to 90 percent of the water used from the water cycle. If permitted, fracking would permanently remove nearly 18 billion gallons of water from the Basin over the next 20 years.

Arguing that water use is not at the center of fracking is like claiming that water is not at the center of operating dams. There is simply no fracking without substantial water use.

Second, fracking in the River Basin would contaminate local ground and surface water, killing local aquatic wildlife and making residents sick. 

Fracking results in the formation of millions of gallons of hazardous contaminated fluid and wastewater that can leak into the River Basin, jeopardizing the health of nearby communities and the environment. 

Fracking fluid and wastewater contain thousands of chemicals, many of which are toxic. Any leak or spill of fracking wastewater can be fatal to humans and other species, including fish.   

The Delaware River Basin Commission was formed with the explicit purpose of safeguarding the waters of Delaware River Basin, along with protecting the health of the 7.3 million residents who live there. It follows that it has both the authority and the responsibility to prohibit fracking in the Basin.

Click Here for a copy of the brief.

For more information on the proposed fracking ban, visit DRBC’s Natural Gas Drilling webpage.

(Map: Shale gas areas within the Delaware River Basin.)

[Posted: May 13, 2020]  PA Environment Digest