WAYNE COUNTY, PA — A federal court case between the Delaware River Basin Commission (DRBC) and a natural gas company in Wayne County could have a lasting impact on fracking in the Delaware River Basin. In litigation since 2016, environmental advocates and the region’s natural gas industry are both eager to see the case resolved.

At the DRBC’s last meeting in December—in the shadow of the deeply controversial vote approving the construction of New Jersey’s first liquefied natural gas terminal—the commission’s legal counsel Ken Warren provided a brief overview and update on the case.

“The plaintiff [Wayne Land & Mineral Group] seeks a declaration that the well pad fracking activities that it intends to undertake in Wayne County are not a ‘project.’ And according to the plaintiff, if they are not a ‘project,’ they are not subject to DRBC review,” Warren said. “The commission is vigorously defending that litigation because we believe that the activities that this plaintiff plans to perform are in fact a ‘project’ and are, therefore, subject to [our review] if they would have a substantial effect on the water resources in the basin.”

The location of the company’s, known commonly as Wayne Land, intended well pad drilling is located on the watershed line between the Delaware and Susquehanna rivers in Wayne County. In fact, the majority of the 180 acres the company owns lies within the Susquehanna River Basin, where there are currently no restrictions on fracking. Despite this, the company intends to construct its “well pad approximately five to seven acres in size and to install at least six natural gas wells to facilitate high volume hydraulic fracturing” on Delaware River Basin land.

And at a glance, it seems like a narrow case, with a company and a government agency squabbling over what must be a rather vague line separating a “project”—something falling under the commission’s purview—from a private business activity that the government doesn’t get much of a say in.

But the consequences of the litigation reach farther than Wayne County and further than clarifying unclear legalese, according to Maya K. van Rossum, chief executive officer of the Delaware Riverkeeper Network, a nonprofit group intervening in the case on the side of the DRBC. Van Rossum said the Middle District Court’s decision will have ramifications on the DRBC’s moratorium on fracking, in place since 2010. She said the commission’s overall authority as a regulator is at stake as well.

“First off, [DRBC losing] would result in an instant undermining of the moratorium and that’s what [natural gas companies] want; they want this protection removed,” she said. “But the ramifications would be beyond fracking, we don’t really know how far... If fracking in and of itself is not going to be determined to be subject to the authority and jurisdiction of the DRBC, then it is abundantly clear to us that we will have every industry that’s been regulated by the DRBC knocking at the courtroom doors, trying to expand and extend this ruling to undermine the authority of the DRBC on all kinds of fronts.”

Honesdale planning and research consultant Tom Shepstone, who said he’s informally working with Wayne Land on the case, made a video update in November 2020 for the website www.naturalgasnow.org in which he explained that the company’s suit has been financed by an “angel investor” from the Lehigh Valley who is “very committed to our cause.” Shepstone is an outspoken fracking, or “mineral rights,” advocate and says that the DRBC has stolen those rights, and money, from people living in the region by prohibiting fracking.

The issue has also caught the attention of Republican state legislators, including Wayne and Pike counties’ Sen. Lisa Baker. Baker, with by Sen. Gene Yaw (PA-23) and Senate President Pro Tempore Joseph Scarnatti (PA-25), sought to join the case as intervenors. Their attorney argued that the fracking moratorium should be a decision left to Pennsylvania’s lawmakers rather than the DRBC. Middle District Court Judge Robert Mariani originally rejected the senators’ request, after which a court of appeals directed him to reconsider, all before the legislators decided to ultimately withdraw.

In the most recent move, Warren made a motion for partial summary judgment. Rather than seek a decision on the full breadth of Wayne Land’s proposed activities, the DRBC requested a narrower judgment that the company’s “planned activities and planned facilities including structures, machinery and equipment” are deemed a “project.” 

“DRBC does not seek a judgment concerning other aspects of [Wayne Land’s] proposed undertaking... including [Wayne Land’s] acquisition and storage of water, construction of non-wastewater management equipment and structures associated with its well pad, and use of water including extraction of natural gas by injecting millions of gallons of water mixed with chemicals and other substances into the ground,” Warren wrote.

Wayne Land’s attorney David Overstreet responded by filing a brief opposing Warren’s request to divide the ruling into two parts. Overstreet argued that the commission’s motion “pivots away from the rationale” that it always used to regulate natural gas projects in the past. He further claimed the commission’s shift in rationale “does not avoid, and, instead, directly implicates” the ambiguity of the commission’s own policy.

On Wednesday, January 6, Judge Mariani denied both the DRBC's  motion for partial summary judgement and the Riverkeeper Network's motion for summary judgement.  In his opinion, Mariani wrote that "ambiguity remains as to the compact's definition of project and the court, at this stage of the proceedings, should not decide the drafter's intent."

The case has been drawn out since May 2016, about which environmentalists like those at the Riverkeeper Network are critical of both sides. Van Rossum asserted that this case is being used to tap the DRBC, as well as the Riverkeeper Network, of time, energy and money. At the same time, she said that the DRBC has used this litigation to justify not instituting a permanent ban on fracking, a move her organization has also been demanding for years.

“[The natural gas industry] would like to suck the life out of us because we have been standing against them on every front… and they also want to drain the resources of the Delaware River Basin Commission,” van Rossum said. “The Delaware River Basin Commission has used this ongoing litigation as an excuse not to act on the call for a permanent ban [on fracking]; it’s simply an indefensible excuse.”