On June 3, the Environmental Hearing Board issued a ruling to deny standing to Sen. Katie Muth (D-Chester) to appeal the DEP water quality permit for the Eureka Resources oil and gas drilling wastewater treatment plant in Dimock Township, Susquehanna County in her role as an elected official.

The Board reserved the question of individual standing until further discovery and additional motions are considered.

The Board’s decision on standing for elected officials is similar to federal court decisions involving Pennsylvania Senate Republican efforts to block the Delaware River Basin Commission’s moratorium on oil and gas fracking in the Delaware Watershed.  Read more here.

In July 2021, the Federal District Court in Philadelphia ruled the Senators did not have standing to bring the case and threw out their lawsuit against the Commission because they did not prove they had been injured by the fracking ban.  Read more here.

Sixteen Senate Democrats intervened in the lawsuit to oppose efforts by the Republicans to overturn the DRBC fracking ban.  Read more here.

In March of this year, a Federal Appeals Court heard an appeal of the Senate Republicans’ standing case.  Read more here.

The June 3 action by the Environmental Hearing Board follows an EHB decision on May 17 not to grant a temporary supersedeas brought by Sen. Muth that would have blocked Eureka Resources from starting construction of the facility until there was further Board review of the case.  Read more here.

Sen. Muth represents residents in Berks, Chester and Montgomery counties, but claimed she had standing on behalf of the residents who live and work in the area and those who use and enjoy the land and waterways in the vicinity of the proposed treatment plant discharged in Susquehanna County as a legislator who serves as a trustee under the Environmental Rights Amendment to the state constitution in Article I, Section 27.

The Board cited a number of examples where state legislators had standing in cases involving landfills, hazardous waste facilities and the Mariner East Pipeline where the Board and state courts have found legislators did not meet the tests for standing of “substantial, direct and immediate interest” in the issue before the Board simply in their role as a legislator.

The Board pointed out in one case a legislator did have standing as a resident because he was an individual who lived in the neighborhood of the landfill, but not solely because he was a legislator.

Although Sen. Muth brought the appeal as a trustee under the Environmental Rights Amendment, the Board said the notice of appeal she filed was based on and derived from her position as a state senator and her responsibilities under that office.

“The legal question we now must decide is whether the Environmental Rights Amendment confers standing on an individual state legislator as a trustee to challenge a Department action. Based on our review of the law, it does not. Article I, § 27 conveys no special standing on members of the General Assembly to bring an appeal as a trustee of the Commonwealth’s natural resources.”

The Board went on to cite the Federal District Court decisions involving challenges to the Delaware River Basin Commission moratorium on shale gas fracking for support.

The Board said, “Notably, in the Yaw case [Senate Republicans] the [Federal] District Court held that even if the senators had been found to have trustee obligations under the Environmental Rights Amendment, they would still lack standing because they had not made out a “cognizable injury.””

Sen. Muth also contended she has standing in her own right to appeal the issuance of the Eureka Resources permit because she has spent time personally and professionally in Dimock Township where the proposed facility will be located.

“She further alleges that the issuance of the permit will harm her because it will allow the discharge of “radioactive and other wastes into the waters of the Commonwealth, that will flow into the Chesapeake Bay Watershed, the Delaware River Basin, and the Susquehanna River Basin and surrounding areas in which Senator Muth resides, works, and recreates.””

“A majority of the Board at this stage of the litigation is not able to reach a consensus on the question of Senator Muth’s individual standing. Discovery and additional motions directed to the issue of Senator Muth’s standing to pursue this appeal would assist the Board in resolving this issue.”

Click Here for a copy of the EHB opinion.  Documents related to this appeal can be found at EHB Docket No. 2022015.

(Photo: Eureka Resources facility in Williamsport.)

(From information provided by Paul J. Bruder, Jr., Mette, Evans & Woodside, Harrisburg.)

NewsClips:

-- StateImpactPA - Jon Hurdle: Planned Oil & Gas Wastewater Treatment Plant Called New Threat To Dimock’s Water In Susquehanna County

-- NorthcentralPA.com: Eureka Resources Expanding Operations In Northeast PA

Related Articles This Week:

-- AG Shapiro Charges Energy Corporation Of America/Greylock, 2 Employees With Environmental Crimes Involving Leaks At Oil & Gas Well Sites In Clearfield, Greene Counties

-- Senate Republicans, At Request Of Natural Gas Industry, OK Bill To Take Away Protections In Erosion & Sedimentation Permitting For Oil & Gas Activities

-- At The Request Of Natural Gas Industry, Senate Republicans Reported Out Bill To Prohibit Communities From Moving To Clean, Cheaper Energy Sources To Address Climate Change

-- House Republicans Side With Conventional Oil & Gas Drillers, Against Taxpayers, To Continue Pre-1985 Exemption From Well Bonding, Prevent Any Increase In Plugging Bond Amounts

-- On-Site Conventional Oil & Gas Drilling Waste Disposal Plans Making Hundreds Of Drilling Sites Waste Dumps

-- Senate Hearing: Body Of Evidence Is 'Large, Growing,’ ‘Consistent’ And 'Compelling' That Shale Gas Development Is Having A Negative Impact On Public Health; PA Must Act

-- DEP Releases Final Guidance On Handling Radioactive Waste From Unconventional Shale Gas Drilling Operations

[Posted: June 9, 2022]

6/13/2022