Three Pennsylvania state senators who want the Delaware River Basin Commission’s (DRBC) moratorium on hydraulic fracturing eliminated have again filed to intervene in a federal lawsuit challenging the de facto drilling ban.*
The motion comes after a federal appeals court in Philadelphia vacated the U.S. District Court for the Middle District of Pennsylvania’s 2017 decision to throw out the lawsuit that was filed by a small exploration and production company. The senators' previous effort to intervene was denied by the lower court after it found they had no standing.
The Wayne Land and Mineral Group (WLMG) filed a lawsuit against the DRBC in 2016, arguing that the commission lacks authority under the Delaware River Basin Compact to review and approve natural gas development. The senators filed to intervene after a three-judge panel of the U.S. Court of Appeals for the Third Circuit remanded the case to the lower court for further fact-finding about exactly what projects the commission has authority to review under the 1961 compact that established it.
Sens. Lisa Baker, Gene Yaw and Joseph Scarnati -- all Republicans that represent the north-central and northeast parts of the state where unconventional natural gas development has been heavy, or where it hasn’t been allowed to occur due to the moratorium -- want the court to invalidate the ban and prevent the DRBC from enforcing it.
They argue the commission is violating the U.S. Constitution by preventing landowners from profiting from private property. They also claim the state is being thwarted in earning revenue from public land that could be leased for natural gas drilling in the basin. The senators said in their motion that the General Assembly, not the DRBC, has the authority to oversee and regulate such development.
“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, rather than the comprehensive statutory scheme enacted by their duly elected senators,” the motion said.
The basin consists of 13,539 square miles. More than half of that is located in Pennsylvania, where 2,338 square miles is prospective for the Marcellus Shale. According to the U.S. Geological Survey, the senators said, the land holds an estimated $40 billion worth of natural gas reserves.
The DRBC decided in 2009 that all gas drilling in the basin needed to be reviewed, saying it would not approve any development until it adopted new rules governing the industry. The next year it decided to postpone the review of natural gas development and has failed to act on adopting new rules, leaving in place a de facto moratorium.
Congress approved the Delaware River Basin Compact in 1961. It's an agreement among the United States, New York, Pennsylvania, New Jersey and Delaware to protect the Delaware River watershed.
WLMG, which owns acreage in Northeast Pennsylvania that it wants to develop within the river basin, argues the commission is impeding the development of private land and appeasing environmental groups opposed to oil and gas produced by unconventional drilling.
*Correction: A previous version of this story incorrectly stated that the senators motion to intervene was granted by the U.S. District Court for the Middle District of Pennsylvania. No order has been issued on the motion. NGI regrets the error.