PHILADELPHIA, PA — A federal court recently dismissed an attempt by pro-fracking legislators to lift a ban by the Delaware River Basin Commission (DRBC) on hydraulic fracturing activities.

Energy companies have been unable to drill for natural gas—using a process called hydraulic fracturing, or “fracking”—in the Delaware River basin for more than a decade. For many years, the DRBC, an interstate regulatory body tasked with overseeing the protection of the river’s resources, kept out fracking through a de facto moratorium. In March of 2021, the commission issued an official ban of the practice.

Lacking standing

First filed in early 2021, Republican legislators Sen. Lisa Baker (PA-20) and Sen. Gene Yaw (PA-23), argued that by banning fracking, the DRBC had overstepped its regulatory authority, usurped legislative powers from the state’s lawmakers, and stolen the property rights of residents by denying them the ability to profit from leasing their land for fracking.

Other plaintiffs in the case included the PA Senate Republican Caucus, Wayne County, Carbon County, Damascus Township and Dyberry Township. On the side of the DRBC, the advocacy group Delaware Riverkeeper Network, the group’s executive director Maya van Rossum, as well as a host of Democratic Pennsylvania legislators joined the case as intervenors.

Affirming a previous decision by a lower court, the Third Circuit court dismissed the case in September, issuing an opinion that the plaintiff-appellants lacked standing on all counts. Because the individual lawmakers cannot represent the interests of their entire legislative body in court, and because the property owners who are unable to lease their land to drilling companies have not suffered any tangible economic losses, the court deemed the losses “hypothetical” and “speculative.”

“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 court wrote in its opinion. “The municipalities lack standing because the economic injuries they allege are ‘conjectural’ and ‘hypothetical’ rather than ‘actual and imminent.’”

Environmental Rights Amendment

Taking an unconventional route, the plaintiffs also alleged that the fracking ban violates the Environmental Rights Amendment (ERA) of the PA Constitution, because it infringes upon the elected officials’ duty to serve as trustees of Pennsylvania’s natural resources.

Added to the commonwealth’s constitution in 1971, the ERA states: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the commonwealth shall conserve and maintain them for the benefit of all the people.”

“The fact that these state entities, who are charged under the constitution as trustees of the public natural resources, tried to use that same constitutional duty to argue that they had to fight the fracking ban… was a warped interpretation of the constitution,” said Kacy Manahan, senior attorney at the Delaware Riverkeeper Network. “We thought it was, frankly, dangerous and offensive to interpret the ERA that way.”

The court rejected the senators’ and municipalities’ attempt to show that this fracking ban has caused them injuries as “trustees of Pennsylvania’s natural resources under the ERA.”

“Although this is Plaintiffs-Appellants’ most legally creative theory of standing, it too falls short,” the court wrote. “The problem with this argument is that it 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.”

Rather than violating the rights outlined in the ERA, the fracking ban—according to the court— actually “promotes” and “protects” the trust by keeping Pennsylvania’s natural resources from being depleted.

Narrow decision

This is unlikely to be the last word on the fracking debate. The federal judges recognized this in their opinion, stating, “Our holding today is narrow. The fact that the plaintiffs in this case lack standing to challenge the ban on fracking does not mean that it will go unchallenged.”

Another case that could potentially call the fracking ban into question has yet to be settled. A private landowner called the Wayne Land Mineral Group owns about 180 acres on the watershed line between the Delaware and Susquehanna river basins and is looking to pursue well-pad drilling in the Delaware. The group attempted to get the former fracking moratorium lifted by filing suit against the DRBC several years ago. That case was put on hold, pending the results of the now-dismissed legislators’ challenge. It’s unclear how that ongoing case will shake out now.

“The Wayne Land Management case was not a challenge to the fracking ban, because the ban didn’t exist at the time, it was a challenge to the moratorium that came before it,” Manahan said. “The stay on that case has not been lifted yet, so it remains to be seen how that will evolve, but we are parties to that case as well.”

Other lawmakers are pushing to expand natural gas development in the basin, although not through legal battles. Wayne and Susquehanna counties’ Rep. Jonathan Fritz has sponsored two pieces of legislation aimed at redefining the DRBC’s role as a regulatory body and paving a path for fracking in the Delaware. He calls the fracking ban “indefensible” and said that fracking can be done in Wayne County without any impact on the watershed’s safety.

One bill, HB 2450, would change the balance of power within the five-member DRBC. Currently, each state in the commission—Pennsylvania, New York, New Jersey and Delaware, plus the federal government—gets a single vote on the issues they decide. Fritz’s bill would assign each party a vote based on how much land area it has in the basin, giving Pennsylvania six votes, New Jersey three, New York two, Delaware one and the federal government one.

The other bill, HB 2451, would unilaterally change the DRBC compact—the legal document through which the commission gains its authority—to reverse its fracking ban. Essentially, Fritz’s bill proposes an amendment to the compact so that the DRBC may only adopt and enforce rules and regulations “provided that the rules and regulations do not impede or interfere with… hydraulic fracturing.”

Pushing for a full ban

As pro-fracking officials look for ways to reverse the ban, various environmental advocacy groups are pushing hard to get the ban expanded.

When the DRBC voted to ban fracking in early 2021, it did not issue a final decision on whether it would permit “wastewater” from fracking— production residue that contains multiple toxic chemicals and radioactivity, of which the fossil fuel industry produces about 900 billion gallons annually—to be imported into the Delaware River Basin, nor did the DRBC decide if it would allow water from the Delaware River to be exported for fracking activities in other river basins.

In October of 2021, the commission issued a set of draft regulations that “discouraged” both the import of wastewater and the export of water, but left far too much room for loopholes and exceptions for environmentalists’ comfort.

“It made absolutely no sense to ban fracking, but allow the pollution from fracking wastewater to negatively impact the watershed and our communities here,” said Tracy Carluccio, deputy director at the Delaware Riverkeeper Network.

The comment period on the adoption of these regulations ended last February, and the DRBC has not issued any additional information or taken action since. However, a coalition of different groups are continuing to apply pressure for a full ban, before the DRBC eventually votes to finalize its position.

This coalition is currently circulating a letter addressed to the DRBC’s commissioners (the governors of all four states, as well as President Joe Biden) that demands a full ban. Nearly 800 people have signed their name to the letter so far. It will be sent to the commissioners in October.

The full letter can be seen at www.bit.ly/frackingletter.