On February 12, the Delaware Riverkeeper Network filed a motion to intervene in the federal lawsuit filed by the entire PA Senate Republican Caucus against the Delaware River Basin Commission’s moratorium on natural gas drilling in the watershed.

The Delaware Riverkeeper Network’s motion includes a proposed motion to dismiss the complaint.

The lawsuit was filed on January 11 by the entire PA Senate Republican Caucus, Senators Gene Yaw (R-Lycoming) and Lisa Baker (R-Luzerne) in particular and Damascus Township in Wayne County to overturn the current de facto moratorium on gas drilling, fracking, and related operations in the Delaware River Watershed.  Read more here.

The Senate Republican Caucus includes Senators Jake Corman (R-Centre), Kim Ward (R-Westmoreland), John Gordner (R-Columbia), David Argall (R-Schuylkill), Ryan Aument (R-Lancaster), Lisa Baker (R-Luzerne), Camera Bartolotta (R-Washington), Michele Brooks (R-Crawford), Pat Browne (R-Lehigh), John DiSanto (R-Dauphin), Chris Dush (R-Jefferson), Scott Hutchinson (R-Venango), Wayne Langerholc (R-Bedford), Dan Laughlin (R-Erie),  Scott Martin (R-Lancaster), Dough Mastriano (R-Adams), Bob Mensch (R-Montgomery), Kristin Phillips-Hill (R-York), Joe Pittman (R-Indiana), Mike Regan (R-Cumberland), Devlin Robinson (R-Allegheny), Mario Scavello (R-Monroe), Pat Stefano (R-Fayette), Tommy Tomlinson (R-Bucks), Elder Vogel (R-Beaver), Judy Ward (R-Blair) and Gene Yaw (R-Lycoming.

“By filing yet another legal action to force fracking on Pennsylvania communities in areas now protected, Senators Yaw and Baker are violating their oath to uphold the constitution of the Commonwealth of Pennsylvania and their duty to protect the health, safety and rights of all Pennsylvanians including future generations,” said Maya van Rossum, the Delaware Riverkeeper.  “To advance such deceitful and erroneous legal arguments clearly intended to serve the financial interests of the fracking industry, and perhaps even the legislators themselves, regardless of the devastating consequences for the environments, people and future generations of Pennsylvanians truly shocks the conscious, but sadly seems to be the local version of the abuses of power and law we are seeing at the national level.”

In the motion filed, the Delaware Riverkeeper Network seeks to intervene on behalf of its members and to carry forth its mission to defend the Delaware River Watershed. DRN’s long standing advocacy has involved watchdogging, participating in and engaging others in the DRBC’s regulatory programs and policy decisions.

Among important initiatives DRN has carried out with the agency is petitioning for regulatory changes to the DRBC’s Water Code such as the creation of the Special Protection Waters (SPW) program and its designation applied to portions of the federally designated Wild and Scenic River.

The SPW program has resulted in the Delaware River containing the longest stretch of protected anti-degradation waters in the nation and one of our country’s cleanest rivers. As stated in DRN’s Motion to Intervene, “These regulations and designations are fundamental to the moratorium at issue in this case.”

In its Proposed Motion to Dismiss, which accompanied the intervention motion, the Delaware Riverkeeper Network claims the plaintiff parties to the Pennsylvania Senate Republican Caucus lawsuit lack standing because they are not suffering any requisite harm.

DRN said the plaintiffs perversely employedArticle 1, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment in their argument.

The Proposed Motion to Dismiss states, for instance, that Damascus Township, as one of the Plaintiffs, subverts its role as a trustee by “promoting heedless economic motivations that the citizens of the Commonwealth overwhelmingly voted to thwart by adopting the Environmental Rights Amendment”.

“DRN is seeking to defend the value of the Delaware River Watershed’s irreplaceable natural assets and the quality and health of its ecosystems and communities from the Republican Senators’ self-serving effort to expand fracking and the destruction it brings into the Delaware River Watershed,” said Tracy Carluccio, Deputy Director, Delaware Riverkeeper Network.  “The DRBC was one of the first watershed-based commissions in our nation’s history and it has implemented that approach for decades in the decisions it makes as it applies its regulations. The watershed perspective recognizes that what occurs on the land is inexorably connected with the quality, flows, and abundance of the receiving waters. The PA Senate GOP Caucus lawsuit ignores this or simply does not get this fundamental fact. DRN wants to make certain we are all fully protected from this specious litigious attack.”

Click Here for a copy of the motion.

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.

Related Article:

-- PA Senate Republican Caucus Files Lawsuit Against Delaware River Basin Commission Over Shale Gas Drilling Moratorium

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[Posted: February 12, 2021]

2/15/2021