Fracking ban still facing legal challenges

    by Lori Goldstein

    On February 25th, the Delaware River Basin Commission (DRBC) voted to convert its 10-year moratorium to a permanent ban on fracking for natural gas in the Delaware River Watershed, protecting the 13,539-square-mile basin for the benefit of its 13 million residents.

    Alternates for the governors of Pennsylvania, Delaware, New Jersey, and New York cast their affirmative votes, with Brigadier General Thomas Tickner, commander and division engineer of the North Atlantic Division of the U.S. Army Corps of Engineers, the federal representative, abstaining, citing the need for more time to coordinate with the Biden administration.

    Maya van Rossum, leader of the Delaware Riverkeeper Network (DRN), considers the fracking ban “overall a grand success with more work to be done,” since two important proposals were pulled back and replaced with a call for a process that would consider those issues further. One involves regulations that would ban the import of toxic frack wastewater into the watershed for treatment, storage, and disposal; the other would prevent the export of water from the basin to support fracking elsewhere.

    While the fracking vote did not need the federal representative’s endorsement to pass, van Rossum was disappointed because “the Biden administration has made it very clear that they are dedicated to prioritizing the climate crisis, advancing environmental justice…Even Governor Wolf, who is pro-fracking voted yes to the ban, so there are a lot of nuances where you don’t have to be anti-fracking in order to have voted for this prohibition.”

    Long before the votes were cast, in May 2019, an industry-backed lawsuit on behalf of the Wayne Land & Mineral Group of Wayne County alleged that the DRBC doesn’t have jurisdiction over gas drilling, challenging the 10-year moratorium on fracking.

    On January 6th, 2021, presiding U.S. District Judge Robert Mariani set an October 2021 trial date, denying a summary judgment, which indicated “he was not taking a position on a fundamental element of the dispute.” [PA Environment Digest Blog].

    “If you’ve got facts that are in dispute – somebody is saying blue is green and the other is saying blue is red – you have to have a trial with testimony, experts, and evidence to prove whether blue is green, red, or blue,” explains van Rossum. “The judge can’t really figure it out. The Wayne Land & Mineral Group is not agreeing to the true, basic facts, making it difficult for the judge to render a summary judgment. We all know that green is green, but when you have a plaintiff saying no, green is red, blue, and black, the judge is forced to set a trial date.”

    DRN has a role as an intervenor in this lawsuit. “That means we have been able to demonstrate that we as an organization, for ourselves and our members, have a significant interest that will not be well-represented by any of the parties already involved; that there is a special, unique harm that we have experienced; and that we face a position that won’t be heard unless we’re part of the lawsuit,” explains van Rossum. “As an injured party, it is required by law that we are allowed to join this lawsuit.” The DRBC will be representing themselves, and the DRN will also be arguing against the industry. With the DRBC’s ban on fracking and the likely success of provisions regarding export of fresh water and import of wastewater, DRN will be arguing that “the Wayne Land & Mineral Group lawsuit is moot, because they grounded it in an entirely different foundation – a direct attack on the prior moratorium – that just no longer applies,” says van Rossum.  “I’m sure that they are continuing to keep it alive.”

    A more recent lawsuit was filed in federal court by Philadelphia attorney Matthew Haverstick on January 18th, 2021, on behalf of Pennsylvania State Senators Lisa Baker, (R-Lehman), and Gene Baker, (R-Williamsport), along with Damascus Township Commissioners of Wayne County. The plaintiffs claim that the DRBC fracking ban illegally usurps state legislators’ authority to govern, and they request the ban be declared unconstitutional [Philadelphia Inquirer, Pittsburgh Gazette]. The DRN will be arguing as an intervenor in this case as well. 

    “In large part, we will be arguing that the DRBC’s authority is applicable and real. We are focused on protecting the river for the people who inhabit the watershed and for nature. We have members who are injured by the outcome of the case that wouldn’t be heard or represented by the DRBC. They can only be heard if we’re at the table,” says van Rossum. “The DRBC and DRN are fundamentally on the same side of the issue, as the DRBC has the authority to regulate fracking. We have that same outcome perspective, but other than that the DRN will have different matters to address in court.”

    Another claim of the federal lawsuit is that the plaintiff’s Fifth Amendment rights – those that stipulate that private property shall not be taken for public use without just compensation – are being infringed.  First, the land is not being confiscated. Secondly, “it’s not being restricted with a level of strength and severity that its owners can’t get full, meaningful, economically valuable use out of that land,” affirms van Rossum.  “It’s a limitation on using the land in a way that will fundamentally harm others’ rights.” An analogy are zoning laws, whereby governments protect the rights of all for the sake of the common good. “This is not a takings, although that’s what they’re whining and crying about and trying to assert. I take it they’re claiming loss of millions of dollars, and if they’re not framing it that way, they’re really going after the DRBC,” says van Rossum.

    “It’s not like they’ve been robbed of all opportunities to make money, just this one way that would be devastating to everybody else – harm their health, jeopardize their safety and economic vitality.”

    Senators Yaw and Baker are also claiming that this ban is robbing state legislators of the ability to represent their constituents. Van Rossum dismisses that claim. “Can you imagine if every time the Pennsylvania legislature passes a law, there was one or two members of the Senate or the House who didn’t like that law, they would file a lawsuit to overturn it?” She points out that Pennsylvania’s participation in the DRBC has been supported by the entire legislature for 60 years. “There will come a time when Pennsylvania gets to revisit that decision, somewhere around 2050. Pennsylvania has received many benefits by being an active participant in the DRBC.”

    On March 12th, State Senator Steve Santarsiero (D-10) was joined by Democratic colleagues in New Hope to announce that they had filed a motion in United States District Court for the Eastern District of Pennsylvania to intervene in the case of Yaw v. The Delaware River Basin Commission.

    “Clean water and air is a constitutional right for all Pennsylvanians, and it’s the duty of the General Assembly to ensure those rights are not infringed upon,” said Sen. Santarsiero. “The people of Bucks County – and the rest of the Delaware River Basin – have a constitutional right to clean, safe drinking water. We are not going to allow the oil and gas industry to contaminate that water. Working within its authority, the DRBC has been a steadfast champion for protecting the assets of the Delaware River Basin since its inception. Thanks to the DRBC and the work of environmental advocates, an incredible amount of progress has been made over the years to clean our waterways and create a reliable source of drinking water for millions of people. We have come too far to cede that progress to the damaging effects of fracking on our environment and land.”

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