Sept. 24–State Sen. Lisa Baker and two fellow legislators are seeking to join a federal lawsuit that challenges the Delaware River Basin Commission’s authority to regulate hydraulic fracturing within the watershed.
In a motion to intervene, the senators contend the DRBC exceeded its authority when it issued a 2010 moratorium that banned natural gas drilling in the basin. They want to join a 2016 lawsuit filed by Wayne Land and Mineral Group, a natural gas driller, that challenges the DRBC’s position.
Hydraulic fracturing, or fracking, is a process that uses high pressure to inject a large volume of water, chemicals and sand into Marcellus Shale, causing it to crack and release natural gas. It’s a controversial issue opposed by environmental groups and others concerned about the potential risks it poses to the environment and water supplies.
The resolution of Wayne Land’s case will have significant ramifications for Pennsylvania. The basin covers roughly 13,539 square miles, of which 6,422 square miles is located in Pennsylvania, according to the motion to intervene. It’s estimated the land in Pennsylvania holds more than $40 billion in natural gas reserves, the motion says.
The DRBC — composed of commissioners from Pennsylvania, New York and New Jersey — entered into a 1961 compact that vested the commission with the responsibility to manage and regulate use of water in the Delaware River.
Wayne Land’s lawsuit challenged the DRBC’s position that it needs the commissioners’ approval to drill for natural gas on land it owns within the basin. It asked a judge to declare that construction of a fracking well pad does not equate to a “project” as defined by the DRBC’s compact.
U.S. District Judge Robert D. Mariani dismissed the lawsuit in 2017, but the 3rd Circuit Court of Appeals overturned the ruling in July. The court said it found the definition of “project” to be ambiguous and returned the case to Mariani to hear additional evidence to determine what type of activities the drafters of the compact meant to include.
In the motion to intervene, Baker, R-20, Lehman Twp.; Senate President Pro Tempore Joseph Scarnati, R-25, Wellsboro; and Sen. Gene Yaw, R-23, Williamsport, argue the moratorium is a matter that should be decided by state legislators, not the DRBC.
“In enforcing the moratorium, the commission has attempted to exercise legislative authority vested (in) the General Assembly and subject over five million citizens of the Commonwealth residing in the basin to its dictates,” Matthew Haverstick of Philadelphia, one of the senators’ attorneys, says in the motion.
Haverstick argues the DRBC’s position is contrary to the intent of the compact. The senators, as trustees of the state’s natural resources, have an obligation to protect the best interests of citizens.
Maya van Rossum of the Delaware Riverkeeper Network, an environmental group that was previously granted permission to intervene in the case, said the law is clear that decisions regarding the basin are vested with the commission, not the Legislature.
“They are misunderstanding and misapplying the law,” van Rossum said.
Van Rossum also criticized the senators for supporting Wayne Land’s position.
“We don’t think it’s appropriate for legislators to intervene on behalf of a devastating industry that would wreak so much havoc and damage on communities and the environment,” she said. “It’s simply not an appropriate role for them to play.”
The following response to all three inquiries is from Drew Crompton, General Counsel for the Senate Majority Caucus, respondoning on behalf of Baker, Scarnati and Yaw, issued the following statement:
“It is not unusual for Senators to get involved in matters before the state and federal courts. For over twenty years members from both the Republican and Democrat caucuses have asserted rights and positions in litigation. In this matter the Senators are acting in their official capacity, thus Senate funds are used for corresponding legal bills. The Senators involved have significant interest in the legal questions in this case and the corresponding impact on residents living within the Delaware River Basin. The Delaware River Basin Commission was established by state law and the parameters established are what the Senators are disputing. The Third Circuit reversed the decision of the District Court which found for the DRBC. The focus of the Third Circuit decision was on the legislative history of the Compact. Providing legislative background is very appropriate for members of the legislature.”
Attempts to reach David Overstreet, attorney for Wayne Land, for comment Friday were unsuccessful. Kate Schmidt, a spokeswoman for the DRBC, declined to comment.
Contact the writer:
@tmbeseckerTT on Twitter
Editor’s Note: The above article was changed to include Drew Crompton’s comments, which were received after deadline.
(c)2018 The Times-Tribune (Scranton, Pa.)
Visit The Times-Tribune (Scranton, Pa.) at thetimes-tribune.com
Distributed by Tribune Content Agency, LLC.