Pennsylvania GOP lawmakers sue over Delaware River drilling ban, Two Republicans claim Delaware River Basin Commission overstepped its authority and usurped the Legislature with its moratorium on natural gas development

Penn. state senators sue over natural gas ‘moratorium’ by river commission by Sebastien Malo, Jan 11, 2021, Reuters, Westlaw News

Two Pennsylvania state senators filed a lawsuit Monday against the Delaware River Basin Commission in federal court claiming it has usurped the state’s legislative power by declaring a de facto moratorium on the construction and operation of wells for natural gas production in the parts of the Marcellus Shale formation encompassed by the basin.

State Senators Gene Yaw and Lisa Baker as well as the Pennsylvania Senate Republican Caucus say that the federal interstate body, which oversees the Delaware River watershed in Pennsylvania, New Jersey, New York and Delaware, violates the underlying compact between the four states by prohibiting since 2010 the construction of gas wells within areas of the basin in Pennsylvania that overlap with the Marcellus Shale formation. They filed their complaint in U.S. District Court for the Eastern District of Pennsylvania.

PA Senate Republican Caucus Files Lawsuit Against Delaware River Basin Commission Over Shale Gas Drilling Moratorium As Part Of Their 2021 Environmental Agenda by David E Hess, PA Digest Environmental Blog, Jan 12, 2021

On January 11, the PA Senate Republican Caucus filed a lawsuit in the federal Eastern District Court of Pennsylvania alleging the Delaware River Basin Commission’s moratorium on shale gas drilling is a taking of private property without compensation and exceeds the authority given the Commission in its compact.

Sen. Gene Yaw (R-Lycoming), who served as Majority Chair of the Senate Environmental Resources and Energy Committee last session, and Sen. Lisa Baker (R-Luzerne) as well as Damascus Township in Wayne County joined in the lawsuit against DRBC.

This is the first major Senate Republican environmental initiative of the new legislative session.

The lawsuit is being filed in support of ongoing legal efforts by Wayne County landowners to overturn the Delaware River Basin drilling moratorium dating back before 2017.  Read more here.

Previous attempts by Sen. Yaw and Sen. Baker to intervene in support of federal lawsuits by the Wayne County landowners against the moratorium have been unsuccessful or withdrawn by the Senators.

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 new lawsuit says the plaintiff filed the action in part based on their obligations under the state’s Environmental Rights Amendment to be a trustee of the state’s public natural resources.

This was the same legal argument the Senators used when they unsuccessfully tried to intervene in support of the Wayne County lawsuit in July of 2019.  Read more here.

Under this trustee responsibility, the new lawsuit says Senate Republicans cannot allow these resources to be managed in a manner inconsistent with the Environmental Rights Amendment, including any revenues derived from the sale of these resources.

The lawsuit says the “General Assembly has substantial discretion in determining the specific allocation of the money in the above-referenced funds—i.e., the Well Fund, the Marcellus Legacy Fund, the Lease Fund, the Environmental Stewardship Fund, and the Hazardous Sites Cleanup Fund—albeit subject to certain restrictions stemming from its trustee duties.”

The ironic use of the Environmental Rights Amendment in the lawsuit ignores a 2017 PA Supreme Court ruling on just these trustee responsibilities that declared unconstitutional the General Assembly’s transfer of monies from DCNR’s Oil and Gas Fund and to other funds to help balance the state General Fund budget in ways that do not fulfill these obligations.  Read more here.

The lawsuit also says the plaintiffs are acting under their authority to oversee permit fees and expenditures coming into the Unconventional Gas Well Fund which provides funding to communities impacted by shale gas drilling and supports DEP Oil and Gas Management Program.

They allege, as a result of the DRBC moratorium, Damascus Township is prevented from participating in these programs unlike neighboring communities which also have shale gas reserves.

The lawsuit asks the court to–

— Declare that the Delaware River Basin Commission drilling moratorium exceeds the power granted to it by the interstate compact forming the Commission;

— Declare the moratorium an unconstitutional regulatory taking;

— Declare the moratorium an unauthorized attempt to exercise the General Assembly’s power of eminent domain; and

— Declare the Delaware Compact illegal under Article IV, Section 4 of the U.S. Constitution guaranteeing each state a republican form of government.

If successfully declared a taking by the federal court in a final action, compensation would presumably be due the landowners affected by the moratorium.

It was suggested at a House hearing in 2019, the value of the drilling rights in the areas affected by the moratorium could be $10 billion. Read more here.

Click Here for a copy of the lawsuit.

Just last week, a federal Middle District Court judge dismissed summary motion requests to end a lawsuit by Wayne County landowners over the DRBC moratorium and allowed the case to continue.  Read more here.


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.

Pennsylvania GOP lawmakers sue over Delaware River drilling ban, Two Republicans claim the Delaware River Basin Commission overstepped its authority and usurped the Legislature with its moratorium on natural gas development by Michael Rubinkam, Jan 12, 2021, Associated Press, WITF

(Harrisburg) — Republican state lawmakers in Pennsylvania are seeking to overturn a ban on gas drilling and hydraulic fracturing in the Delaware River basin, filing a federal lawsuit against the regulatory agency that oversees drinking water quality for more than 13 million people.

Senate Republicans led by Sens. Gene Yaw and Lisa Baker claim the Delaware River Basin Commission overstepped its authority and usurped the Legislature with its moratorium on natural gas development near the river and its tributaries.

The senators want a federal court to invalidate the ban, potentially opening a sliver of northeastern Pennsylvania to what their lawsuit describes as $40 billion worth of natural gas. The gas is found in the Marcellus Shale, the nation’s largest gas field, whose vast reserves spurred a drilling boom elsewhere in Pennsylvania more than a decade ago.

A DRBC spokesperson declined comment Tuesday on pending litigation.

In this 2018 photo, Maya van Rossum, the Delaware Riverkeeper, is shown at a meeting about the proposed ban on drilling and fracking for gas in the Delaware River basin. She said such activity would be harmful and unsafe for everyone.

Maya van Rossum, who leads the Delaware Riverkeeper Network, an environmental watchdog group, accused GOP lawmakers of “carrying the water of the industry,” saying their suit is “an absolute betrayal of trust in terms of their legislative obligation to serve the people of Pennsylvania, not the frackers.”

The lawsuit is the latest salvo in a long-running battle over drilling and fracking near the Delaware, which supplies drinking water to Philadelphia and half of New York City. A Pennsylvania landowners group is also challenging the basin commission’s right to regulate gas development. Baker and Yaw sought to intervene in that 2016 case — which is still being litigated — but a court ruled they lacked standing.

The commission, which regulates water quality and quantity in the Delaware and its tributaries, first imposed a moratorium on drilling and fracking in 2010 to allow its staff to develop regulations for the gas industry. A year later, the five-member panel was scheduled to vote on a set of draft regulations that would have allowed gas development to proceed, but it abruptly canceled a vote amid opposition from some commission members.

In 2017, the basin commission reversed course and began the process of enacting a permanent ban on drilling and fracking, the technique that has enabled a U.S. production boom in shale gas and oil.

The new litigation, filed Monday in federal court in Philadelphia, contends the de facto ban has deprived private landowners of the right to drilling royalties, and has prevented Pennsylvania from leasing public lands to the gas industry and collecting fees from gas development.

The suit argued the ban’s “deleterious effects” have been magnified by the COVID-19 pandemic and resulting economic downturn, with the state and local governments facing significant budget shortfalls.

Even if the suit were to succeed, however, it’s far from certain that drilling could take place on public lands within the Delaware watershed. Gov. Tom Wolf, a Democrat, imposed a moratorium on new drilling leases on all state-owned land in 2015. That moratorium remains in effect.

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