On September 16, the U.S. Court of Appeals for the Third Circuit issued a decision affirming that Pennsylvania state legislators and municipalities lacked standing to challenge the Delaware River Basin Commission’s regulation banning fracking within the Basin.

The Court also rejected arguments that the trust created by the Environmental Rights Amendments to Pennsylvania’s Constitution was injured by the fracking ban.

 In rejecting this argument, the Court explicitly relied on a joint amicus brief from Clean Air Council, PennFuture, and Widener University Commonwealth Law School.

In February 2021, the DRBC banned high-volume hydraulic fracking within the Delaware River Basin. The ban reflected the Commission’s determination that fracking “poses significant, immediate and long-term risks to the development, conservation, utilization, management, and preservation of the [Basin’s] water resources.”

The Plaintiffs—two Pennsylvania state senators, the entire Senate Republican Caucus, and several Pennsylvania municipalities—then filed a lawsuit in federal district court challenging the ban.

After the District Court dismissed the suit for lack of standing [Read more here], the plaintiffs appealed to the Third Circuit and raised an argument that they had standing under the Environmental Rights Amendment.

The Third Circuit, citing Clean Air Council and its partners’ amicus brief, held that the legislative plaintiffs’ ERA argument “fundamentally misunderstands the ERA and would turn it ‘upside down’ if accepted.”

The Court further held that the plaintiffs’ ERA argument “ignores the explicit purpose of the ERA and mistakes the unique public trust it created for a run-of-the-mill financial trust in which the trustees have a duty to maximize profits.”

The Delaware RiverKeeper Network, also an intervenor in the case, highlighted the specific language in the Court’s opinion on standing--

“Although Plaintiffs-Appellants advance several arguments for why they have standing to challenge the ban, none of them have alleged the kinds of injuries that Article III demands. In our view, the state senators and the Senate Republican Caucus lack standing because the legislative injuries they allege affect the state legislature as a whole, and under well-established Supreme Court caselaw, “individual members lack standing to assert the institutional interests of a legislature.””

“The municipalities lack standing because the economic injuries they allege are “conjectural” and “hypothetical” rather than “actual and imminent.” And none of the Plaintiffs-Appellants have standing as trustees of Pennsylvania’s public natural resources under the Environmental Rights Amendment to the Pennsylvania Constitution because the Commission’s ban on fracking has not cognizably harmed the trust.”

The Court concluded that the fracking ban “promotes the purposes of the trust and protects its corpus by preventing Pennsylvania’s natural gas reserves, part of the Commonwealth’s ‘public natural resources,’ from being depleted.”

Click Here for a copy of the procedural ruling.

Reactions

Sen. Steve Santarsiero (D-Bucks), an intervener in the case along with 15 of his Democratic colleagues in the Pennsylvania Senate said, “The drinking water of five million Pennsylvanians will remain safe from the hazardous environmental effects of fracking with today’s court opinion.

“The Republican Caucus has once again been stopped in their misguided effort to overturn the now-permanent ban on fracking in the Delaware River.  This is good news for the future of our water supply and our environment.”  Read more here.

Joseph Otis Minott, Esq., Executive Director and Chief Counsel of Clean Air Council, issued the following statement--

“We are thrilled that the Third Circuit recognized and re-affirmed what the Pennsylvania Supreme Court has already held in no uncertain terms: The state government is constitutionally obligated to protect our public natural resources by conserving and maintaining them for present and future generations, not by extracting and ‘maximizing’ the economic value of those resources. We are hopeful that this will deter future actions by Pennsylvania state and local public officials who would seek to consume, deplete, and monetize our natural resources, rather than uphold their sworn constitutional duty to conserve and maintain them.”

Maya van Rossum, the Delaware Riverkeeper, leader of the Delaware Riverkeeper Network, issued a statement saying, “In filing this legal action to force fracking on Pennsylvania communities in areas now protected, Senators Yaw and Baker, the Republican Political Caucus, and the municipal officials that have joined them in their action, violated their oath to uphold the constitution of the Commonwealth of Pennsylvania and their duty to protect the health, safety and rights of all Pennsylvanians and  future generations to pure water, clean air and healthy environments.

“In short, this case was nothing short of political posturing.  The deceitful and erroneous legal arguments advanced that sought to minimize the harms of fracking, to mischaracterize the powers of the DRBC and their own authority as legislators, were simply and clearly intended to serve the financial interests of the fracking industry, and the personal political goals (and potentially the financial goals) of the legislators themselves. 

“The disregard of senators Yaw and Baker, the Republican Political Caucus, and participating municipal officials, for the devastating consequences of fracking  for our climate, environments, the health and safety of people and that of future generations, truly shocks the conscience. 

“I am proud that I and my Delaware Riverkeeper Network, were able to join forces with the DRBC, Senator Steve Santarsiero (D-Bucks) and other legislators that care about their constitutional obligations to protect the environments of Pennsylvania, and their moral and legal obligations, to address the climate crisis and protect the health and safety of their constituents, to defeat unconscionable claims of Senators Yaw and Baker, and the other misguided politicians that chose to join them in this case.”

van Rossum, who is also the founder of Green Amendments For The Generations, a national movement seeking to advance Pennsylvania-like environmental rights amendments nationwide, adds--

“Among the most powerful recognitions of the court is that the DRBC ban on fracking, which prevents the Commonwealth from liquifying its gas assets for cash in the Delaware River watershed, serves to advance the constitutional obligation of Pennsylvania government officials to conserve and maintain the Pennsylvania’s natural resources for present and future generations. 

“We are working in over a dozen states to advance this powerful constitutional protection for environmental rights and natural resources, the court just reaffirmed the strength such constitutional recognition and protection can provide.”

NewsClips:

-- WHYY - Susan Phillips: Fracking Ban In Delaware River Basin Survives PA Republican Lawmakers’ Challenge In Federal Court

-- Reuters: Delaware River Basin Fracking Ban Challenge By PA Republican Caucus Rejected By Court

Related Articles - Fracking Ban:

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

-- Federal Court Grants Request For 16 PA Senate Democrats To Intervene In PA Senate Republican Caucus Legal Challenge To Delaware River Basin Commission Natural Gas Fracking Ban

-- Bucks, Montgomery Counties Join Opposition To PA Senate Republican Caucus Court Challenge To Delaware River Basin Commission Fracking Ban

-- Dog Whistles: House Republicans Pass Bills Adding More Bureaucracy To DEP Permits Reviews; Pretending To Increase Natural Gas Production In PA

-- Delaware River Basin Commission Bans Hydraulic Fracking Drilling Activities In Watershed; Will Develop Regs To Manage Drilling Wastewater

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-- DEP Public Notices -- Oil & Gas Industry Facilities

[Posted: September 16, 2022]

9/19/2022