The U.S. Court of Appeals for the Third Circuit recently handed down a decision upholding the ban on fracking in the Delaware River basin. 

The decision is the latest in a series of legal disputes over the state’s constitutional protections for the Delaware River — and all waterways throughout the Commonwealth.

Back in February 2021, after a lengthy de facto moratorium, the Delaware River Basin Commission officially issued regulations banning fracking in the basin in February 2021. (Some parts of this regulation relating to wastewater and water transfers remain to be finalized.)  

Some members of our Pennsylvania legislature, acting as individual legislators and not on behalf of the whole legislature, brought a challenge in federal court, asserting that they were legally harmed by the fracking ban and asking the court to overturn it. PennFuture and a number of our partner organizations are particularly concerned about the legislators’ argument that they are trustees of Pennsylvania’s public natural resources under our Environmental Rights Amendment, and that they have a duty to increase the value of the trust by fracking. We strongly disagree and, earlier this year, filed a brief with the federal district court explaining that the ERA in no way supports the legislators’ arguments.  

Fortunately the district court agreed and dismissed the legislators’ case for lack of standing, finding that the legislators did not have an actual legal injury upon which to make a claim.  

The legislators appealed to the Third Circuit, and again PennFuture and our partners filed an amicus brief to set the record straight on the ERA. We explained that the individual legislators were not trustees under the ERA, and even if they were, trustees would not be under a duty to frack. Instead, we explained, the ERA requires that trustees conserve and maintain trust assets, including the water resources of the Delaware River basin.

The Third Circuit agreed, issuing an opinion that affirmed the district court’s dismissal of the legislators’ claims. First the Court found that the individual legislators lacked standing to assert institutional injuries belonging to the legislature as a whole. The Court wrote that the legislators’ claims are “classic examples of institutional injuries because they sound in a general loss of legislative power.” Moreover, the legislators, as individuals, were not authorized to represent the interests of those institutions in court. If the legislature or the Commonwealth as a whole were injured, the Attorney General would be the party for representing the Commonwealth, not individual legislators.  

The Court also addressed the argument that the legislators had standing to challenge the ban as trustees of the Commonwealth’s natural resources under the ERA. The court found this “legally creative” but that it “falls short.” The Court, referring to our brief, agreed with us that the legislators’ view of the ERA would “turn it upside down.” The ERA trust is not a “run-of-the-mill financial trust in which the trustees have a duty to maximize profits.” Instead, the trust must “conserve and maintain” our public natural resources. The Court engaged in an analysis of trust responsibilities and concluded that “the ban promotes the purposes of the trust and protects its corpus” by preventing our public natural resources from being depleted.

The ERA is one of the most important tools that Pennsylvanians have to defend against exploitation of our natural resources and ensure that future generations will be able to breathe pure air and enjoy clean water. We will continue to fight - even against our own legislators when we need to - to defend the rights that the ERA guarantees to the people of the Commonwealth.

Please consider becoming a member of PennFuture today and help support our fight for cleaner water and against the fracking and petrochemical industry’s destructive practices.

Photo courtesy Jim Lukach