PHILADELPHIA – A federal court ruled that the ban on fracking in the Delaware River Basin will continue, defeating a lawsuit brought by state Senate Republicans seeking to overturn it and handing down a decision which state Senate Democrats hail as an environmental victory.
U.S. District Court for the Eastern District of Pennsylvania Judge Paul Diamond ruled June 11 to dismiss litigation brought by state Senator Gene Yaw, state Senator Lisa Baker, the Pennsylvania Senate Republican Caucus, Damascus Township, Dyberry Township and Carbon County due to lack of standing, and finding in favor of the Delaware River Basin Commission.
GOP state senators brought the lawsuit in January, trying to upend the DRBC’s ban on fracking in the Delaware River Basin.
They claimed the ban “exceeds the Commission’s authority under the Compact, is an unconstitutional taking of private and public property, is an illegal usurpation of the Commonwealth’s power of eminent domain and violates the constitutional guarantee of a republican form of government.”
Senate Democrats then intervened in the litigation this past March, and were then joined by both Bucks and Montgomery Counties. Collectively, the intervenors filed a motion to dismiss the lawsuit, charging that the plaintiffs lacked standing.
Diamond concurred, when he found that the Senate plaintiffs did not demonstrate such standing.
“Unfortunately for plaintiffs, the ‘powers’ the moratorium ostensibly impairs are all vested in either the General Assembly or in the Commonwealth, not in individual legislators or their party caucuses,” Diamond said.
“Just as harm to Pennsylvania’s authority is an injury to the Commonwealth – not to its legislative arm – so too, harm to the Legislature’s authority is an injury to the Legislature – not to its individual members. Accordingly, plaintiffs’ claimed institutional injuries do not afford them standing.”
Diamond added that the municipalities did not show proof of injury in this matter.
“Although the moratorium has existed since 2009, the municipalities allege a single missed fracking opportunity. As I have described, over 12 years ago (plaintiffs offer no more detail), a group of unnamed landowners in Wayne County conducted negotiations regarding a fracking lease,” Diamond said.
“The lease contract became ineffectual when the moratorium went into effect. Accepting these sketchy allegations as true, they obviously do not show that some 12 years later, any of the municipalities is suffering a current injury or has suffered a recent injury.”
Like the state senate plaintiffs, Diamond found the municipalities did not demonstrate proof of standing.
“In these circumstances, like the Senate plaintiffs, the municipalities have not met their burden of demonstrating standing. Unlike the Senate plaintiffs, however, the municipalities might be able to articulate how the moratorium has actually injured them. Plaintiffs’ inability to make out standing confirms that this dispute – which is primarily between two political parties – is primarily partisan and is best resolved through the political process.”
Meanwhile, state Senate Democrats hailed the decision as an environmental victory for Pennsylvania residents.
“This is an important victory in our effort to protect the drinking water of five million Pennsylvanians. The order granting our motion to dismiss the Senate Republicans’ claim was granted with prejudice, which means they are not able to refile their lawsuit. The DRBC has been a steward of our water supply and with the order, they will be able to continue to ensure the Delaware River is free from the hazardous environmental effects of fracking,” State Senator Steve Santarsiero (D-10) said.
“I am confident that this is behind us. If the local governments choose to file amended complaints, we will continue to engage in the lawsuit. The Pennsylvania Constitution’s Environmental Rights Amendment guarantees the right to clean, safe drinking water, and my Democratic colleagues and I will continue to do what is necessary to make that a reality across the Commonwealth.”
Delaware Riverkeeper Network and Delaware Riverkeeper Maya van Rossum also offered comment on the ruling.
“We are pleased, but not surprised, that the Court dismissed the case ruling that the Senators and others do not have standing. In every attempt by Senators Yaw and Baker to intervene in ongoing litigation in order to strike down fracking protections provided to the Delaware River watershed, they have stretched the bounds of the truth, the law, and their authority as legislators,” van Rossum said.
“Fracking is inflicting devastating environmental, health, safety and economic consequences across the Commonwealth; it is important we learn from these experiences by continuing the strong protections provided for the Delaware River watershed while at the same time putting in place a moratorium against ongoing fracking in other Pennsylvania watersheds. We have proven fracking is not safe for our watershed and communities, and at the same time demonstrated it is not safe for any watershed or community. Senators Yaw and Baker need to stand up for the people, not the industry.”
Diamond also dismissed claims from the local government plaintiffs, Damascus and Dyberry Townships, and Carbon and Wayne Counties, without prejudice, for failing to state a claim for which relief can be granted. These plaintiffs were given until July 1 to file an amended complaint. If they fail to do so by the deadline, Diamond ordered that their claims will then be dismissed with prejudice also.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-00119
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com