Terrie Morgan-Besecker of The Citizens' Voice/Scranton Times-Tribune reported on July 22 Senators 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) whose district includes Wayne County, have appealed a May 14, 2019 federal court decision denying them intervenor status in a Wayne County landowners challenge to the Delaware River Basin Commission 2010 shale gas drilling moratorium.
In seeking to intervene, the Senators, who oppose the moratorium, ironically, made a significant part of their argument they should have standing to intervene the fact that they have fiduciary duties as trustees of Pennsylvania’s natural resources under Article I, Section 27 of the state Constitution-- the Environmental Rights Amendment-- as a result of a 2017 PA Supreme Court decision.
The Senators argued-- “...the Commonwealth owns substantial property within the Basin, all of which, pursuant to PEDF [2017 PA Supreme Court case], are part of the Trust. The moratorium, if permitted to remain intact, will totally and permanently divest the aforementioned property from the Trust.
“Indeed, the [DRBC] Commission's proposed interpretation of the Compact arrogates [sic] for itself total control and management of the property held in Trust. The Senators, in turn, have a fiduciary duty to prevent such a diminution of the Trust and, whenever in the best interest of the Trust, increase the value of its corpus.”
While the federal court, in denying their motion to intervene in May, agreed they are trustees, the court said their use of the trustee argument as grounds to intervene to protect the diminution of value of state lands “is at odds with the Pennsylvania Supreme Court’s discussion of the contours of the Constitutional Amendment establishing the Trust….”
The court quoted the PA Supreme Court’s summary of the 2017 decision-- “First, the Commonwealth has a duty to prohibit the degradation, diminution, and depletion of our public natural resources, whether these harms might result from direct state action or from the actions of private parties. Robinson Twp., 83 A.3d at 957.
“Second, the Commonwealth must act affirmatively via legislative action to protect the environment. Id. at 958 (citing Geer v. Connecticut, 161 U.S. 519, 534, 16 S.Ct. 600, 40 S.Ct. 793 (1896) (trusteeship for the benefit of state's people implies legislative duty to enact such laws as will best preserve the subject of the trust, and secure its beneficial use in the future to the people of the state)).”
The 2017 PA Supreme Court decision found the Senate, House and the Governor unconstitutionally transferred revenue gained from natural gas drilling on State Forest land from DCNR’s Oil and Gas Lease Fund to the General Fund to pay for operating expenses of state government in violation of their trustee obligations under the Environmental Rights Amendment.
They have continued that practice since 2009 up to an including the FY 2019-20 state budget in violation of the state constitution, according to the PA Environmental Defense Foundation.
Click Here for a copy of the May 2019 decision denying the motion to intervene.
Background On Case/Moratorium
On July 3, 2018. the U.S. Third Circuit Court of Appeals overturned the dismissal of the Wayne County landowners’ lawsuit on the 2010 Delaware River Watershed ban in March 2017 and remanded the case back to the U.S. District Court for additional hearings.
The Appeals 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 Appeals 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.”
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.
These same three Senators-- Joe Scarnati, Gene Yaw and Lisa Baker-- attempted to intervene on the side of the landowners in October 2017, however, their request was denied by Federal Court in January 2017.
DRBC is now considering a formal ban on fracking, but not drilling, 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.
Gov. Wolf has taken a position in support of the ban on fracking.
The 2010 moratorium remains in effect.
Bill Requiring Compensation
Senator Baker has introduced legislation again this session-- Senate Bill 305-- requiring the Delaware River Basin Commission to reimburse oil and gas rights holders for the value of their rights if DRBC adopts a moratorium on fracking in the watershed.
The bill was reported out of the Senate Environmental Resources and Energy Committee in June and is now in the Senate Appropriations Committee.
Similar legislation was introduced in the House-- House Bill 827 (Fritz-R-Wayne)-- which was reported out of the House Environmental Resources and Energy Committee in March and remains on the House Calendar for action.
(Photo: Senators Scarnati, Yaw and Baker.)
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