On January 11, the PA Senate Republican Caucus filed a lawsuit in the federal Eastern District Court of Pennsylvania alleging the Delaware River Basin Commission's moratorium on shale gas drilling is a taking of private property without compensation and exceeds the authority given the Commission in its compact.
Sen. Gene Yaw (R-Lycoming), who served as Majority Chair of the Senate Environmental Resources and Energy Committee last session, and Sen. Lisa Baker (R-Luzerne) as well as Damascus Township in Wayne County joined in the lawsuit against DRBC.
This is the first major Senate Republican environmental initiative of the new legislative session.
The lawsuit is being filed in support of ongoing legal efforts by Wayne County landowners to overturn the Delaware River Basin drilling moratorium dating back before 2017. Read more here.
Previous attempts by Sen. Yaw and Sen. Baker to intervene in support of federal lawsuits by the Wayne County landowners against the moratorium have been unsuccessful or withdrawn by the Senators.
DRBC has proposed a permanent ban on one process for developing Shale gas-- fracking-- 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 new lawsuit says the plaintiff filed the action in part based on their obligations under the state's Environmental Rights Amendment to be a trustee of the state's public natural resources.
This was the same legal argument the Senators used when they unsuccessfully tried to intervene in support of the Wayne County lawsuit in July of 2019. Read more here.
Under this trustee responsibility, the new lawsuit says Senate Republicans cannot allow these resources to be managed in a manner inconsistent with the Environmental Rights Amendment, including any revenues derived from the sale of these resources.
The lawsuit says the "General Assembly has substantial discretion in determining the specific allocation of the money in the above-referenced funds—i.e., the Well Fund, the Marcellus Legacy Fund, the Lease Fund, the Environmental Stewardship Fund, and the Hazardous Sites Cleanup Fund—albeit subject to certain restrictions stemming from its trustee duties."
The ironic use of the Environmental Rights Amendment in the lawsuit ignores a 2017 PA Supreme Court ruling on just these trustee responsibilities that declared unconstitutional the General Assembly’s transfer of monies from DCNR's Oil and Gas Fund and to other funds to help balance the state General Fund budget in ways that do not fulfill these obligations. Read more here.
The lawsuit also says the plaintiffs are acting under their authority to oversee permit fees and expenditures coming into the Unconventional Gas Well Fund which provides funding to communities impacted by shale gas drilling and supports DEP Oil and Gas Management Program.
They allege, as a result of the DRBC moratorium, Damascus Township is prevented from participating in these programs unlike neighboring communities which also have shale gas reserves.
The lawsuit asks the court to--
-- Declare that the Delaware River Basin Commission drilling moratorium exceeds the power granted to it by the interstate compact forming the Commission;
-- Declare the moratorium an unconstitutional regulatory taking;
-- Declare the moratorium an unauthorized attempt to exercise the General Assembly's power of eminent domain; and
-- Declare the Delaware Compact illegal under Article IV, Section 4 of the U.S. Constitution guaranteeing each state a republican form of government.
If successfully declared a taking by the federal court in a final action, compensation would presumably be due the landowners affected by the moratorium.
It was suggested at a House hearing in 2019, the value of the drilling rights in the areas affected by the moratorium could be $10 billion. Read more here.
Click Here for a copy of the lawsuit.
Just last week, a federal Middle District Court judge dismissed summary motion requests to end a lawsuit by Wayne County landowners over the DRBC moratorium and allowed the case to continue. Read more here.
Reaction
Delaware RiverKeeper Maya van Rossum issued this statement on the Republican lawsuit, “The plaintiffs are doing nothing to protect the environment, the economy, or the people of Pennsylvania with this specious attack. The use of the Environmental Rights Amendment (ERA) to advance their cause is a clear misappropriation of Constitutional language.
“In fact, by fronting for the industry and using the ERA as an excuse, they are betraying their oath of office.
“The DRBC is carrying out its duties based on the Compact by which they are governed, which has equal representation into all decisions from each voting member of the Commission – the Governors of the four states that are part of the Delaware River Watershed, which of course includes Governor Wolf, and the Army Corps of Engineers representing the federal government.
“The Pennsylvania Legislature supports the DRBC’s Compact through their joining the Commission upon its founding. This lawsuit is simply these legislators carrying the water of the industry, fronting for those working for their own self-benefits.”
Tracy Carluccio, Deputy Director, Delaware Riverkeeper Network, added-- “These politicians will not succeed in their attempt to take over our watershed, even though they have the apparent backing of a powerful industry.
“DRBC by the Compact’s mandate and by adopted regulations protects the drinking water for millions who have nowhere else to get it, upholds Congress’s designation of the Delaware as a Wild and Scenic River, defends the river’s exceptional values including high water quality, healthy flows and habitats through its Water Code, and works to support the economic importance of the river and its watershed.
“Fracking and the ruinous activities of gas development in all its damaging phases in Pennsylvania has been championed by legislators who are supposed to be standing up for Pennsylvanians but instead are pushing the agenda of special interests.
“As a result, public health and the environment have paid a heavy, unjust price. Now these legislators are trying to expand this into the Delaware River Watershed. People deserve and require the protection of the DRBC, with decisions made on a watershed basis, guided by the collaboration of the Commissioners.
“We, our fellow organizations and members of the public who have fought so long and hard to keep fracking out of the watershed will not let this selfish unfounded attempt by a special few upend the protections the river and its watershed require."
Background
The Delaware River Basin Commission has had a temporary ban on natural gas fracking in the watershed since 2010 while it develops regulations on the process.
DRBC has proposed a permanent ban on one process for developing Shale gas-- fracking-- 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) requested for a second time to intervene directly in the federal court case, a highly unusual move.
They withdrew their second attempt to intervene in July of last year. Read more here.
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 was left in the Senate Appropriations Committee and the end of session last year.
House Bill 827 (Fritz-R-Wayne) was left on the House Calendar without action at the end of session after being reported out of the House Environmental Resources and Energy Committee in May of 2019.
Both bills are expected to be reintroduced again this session.
For more information on proposed natural gas fracking moratorium, visit DRBC’s Natural Gas Drilling webpage.
NewsClip:
Reuters: PA State Senators Sue Over Natural Gas Moratorium By Delaware River Basin Commission
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[Posted: January 12, 2021] PA Environment Digest
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