We continue to bring you good news on the fracking front in the Delaware River Basin. In February 2021, the Delaware River Basin Commission (DRBC) took the monumental step in passing regulations that ban the use of high volume hydraulic fracturing technology (“fracking”) to extract shale gas within the Delaware River Basin. 

As predicted, a legal challenge was quickly filed challenging the DRBC’s authority to ban fracking, spearheaded by PA State Senators Gene Yaw and Lisa Baker, the PA Senate Republican Caucus, and several municipalities. PennFuture, joined by partners, responded by submitting a “friend of the court” brief which focused on the erroneous Environmental Rights Amendment claims made by the plaintiffs. (Article I, Section 27 of the Pennsylvania Constitution recognizes a fundamental public right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment and to have the Commonwealth conserve and maintain public natural resources for the benefit of present and future generations.) Our brief supported the arguments of the DRBC and intervenors that the plaintiffs lacked standing to bring this lawsuit.

On June 11, 2021, the District Court for the Eastern District of PA agreed and dismissed the case holding that the plaintiffs lacked standing to file this case. Standing is the legal concept that ensures that a party has a “dog in the fight” – basically have they suffered the right kind of redressable injury to bring the lawsuit and “stand” before the court. Ultimately, Judge Paul S. Diamond concluded that this dispute “is primarily partisan and is best resolved through the political process.” 

In particular, Judge Diamond disagreed with the Senators’ claims that state law vests them with sufficient interest to confer standing as does their claimed status as “trustees” under the Environmental Rights Amendment, calling these theories “meritless.” The plaintiffs failed to show that the DRBC’s actions harmed them: “Although all plaintiffs argue vigorously that they have standing, they do not.” However, while foreclosed to the Senate plaintiffs, the court left open the possibility for the municipal plaintiffs to refile with strengthened allegations. The plaintiffs have 30 days to appeal this decision if they so choose.

The fact that DRBC’s ban on fracking survived its first legal challenge is definitely cause for celebration! We have been waiting for over a decade for the DRBC’s ban to become permanent and we believe the final ban will withstand any challenges. 

But challenges to DRBC’s authority over fracking still remain. Not only could the municipal plaintiffs refile this case and the parties can also appeal the decision, but there is an outstanding 2016 lawsuit against DRBC filed by the Wayne Land and Mineral Group. That case challenges DRBC’s authority under the Delaware River Basin Compact to regulate shale gas development in the Basin as a “project.” The impact of both the finalization of the DRBC’s fracking ban regulations and the recent decision in Yaw v. DRBC is still being considered. 

Additionally, the DRBC withdrew its proposed regulations on transport, storage, treatment, and disposal of fracking wastewater within the Basin and its proposed regulations on allowing Delaware River Basin water to be exported outside of the basin to be used in fracking operations. PennFuture took issue with their first draft regulations asking for them to be withdrawn because they were not protective of basin waters. The DRBC has until September 2021 to release new regulations on these matters.

PennFuture remains committed to protecting the Delaware River watershed from the harmful impacts of fracking and we will continue to engage on these matters. Please become a member today to support our efforts!