Written by Chloe Marie –
Research Specialist
The
Delaware River Basin Commission (Commission) is a federal interstate agency
established in 1961 by the Delaware River Basin Compact and is comprised of the
states of Delaware, New Jersey, New York, Pennsylvania and the U.S. Army Corps
of Engineers working together on the management of water resources in the
Basin. The Commission has been working for a long time on the consideration of
regulations addressing the impacts of natural gas development on waters within
the Basin. Eventually, on November 30, 2017, the Commission proposed to
prohibit hydraulic fracturing within the Basin.
On
May 17, 2016, Wayne Land and Mineral Group (WLMG), LLC, filed a lawsuit against
the Delaware River Basin Commission challenging the Commission’s jurisdiction
to review and approve natural gas projects located in the Delaware River Basin
– and indirectly the proposed ban on hydraulic fracturing projects in the
Basin. The WLMG is a group of landowners whose properties overlay shale gas
resources in the Basin. The landowners allege that natural gas well pads and
related facilities targeting shale formation in the Basin are not projects that
are to be reviewed by the Commission under Section 3.8 of the Compact.
WLMG
also complains that the Commission infringes upon their rights to develop shale
gas resources on their properties after the agency announced in 2010 that it
would not review applications for natural gas projects until it adopted
specific natural gas development regulations.
On
July 8, 2016, the Commission filed a motion to dismiss WLMG’s complaint for
failure to state a claim. In its motion, the Commission asserted that, besides
its regulatory authority, the Commission has planning and project review
authority for any activity or facility undertaken for the purpose of managing,
developing and using water resources of the Delaware River Basin, and that all
projects in the Basin must be reviewed and approved by the Commission pursuant
to Section 3.8 of the Compact. In this case, however, the Commission alleged
that the records do not show that WLMG submitted any application to the agency
for a project in the Basin, despite arguing that the Commission “has already
decided that it has project review jurisdiction over WLMG’s activities” based
on a discretionary basis. The Commission stated that WLMG made “conclusory
allegations” regarding its actions, stating that “the Complaint offers no
detail on when this decision was purportedly made or by whom.”
As
to WLMG’s claim that the Commission used discretionary powers in declaring that
all natural gas well pads and related facilities targeting shale formation in
the Basin are projects to be reviewed under Section 3.8 of the Compact, the
Commission alleged that those are mere declarations made in the Executive
Director Determinations (EDD) – respectively dated May 2009,
June
2010, and July
2010 – and are not binding regulations. The Commission stated that
these declarations are interpretive of Section 3.8 of the Compact as well as
“administratively appealable, non-final decisions that remain subject to
challenge during an individual project review proceeding, and were not subject
to notice and comment.”
The
U.S. District Court for the Middle District of Pennsylvania granted the
Commission’s motion to dismiss on March 23, 2017, and found that “on the face
of Plaintiff’s Complaint … it is apparent that its proposed activities within
the Delaware River Basin constitute a ‘project’ within the meaning of that term
as defined in Sections 1.2(g) and 1.2(i) of the Compact.” WLMG appealed this
decision to the United States Court of Appeals for the Third Circuit (docket
no. 17-1800) on April 7, 2017.
On
July 3, 2018, the U.S. Court of Appeals for the Third Circuit vacated the U.S.
District Court’s decision and remanded the case for further proceedings. The
U.S. Court of Appeals concluded
that the meaning of the word “project” in the Compact is “ambiguous” and needs
further interpretation.
On
September 17, 2018, three Pennsylvania state senators – Joseph B. Scarnati,
Lisa Baker, and Gene Yaw – filed a motion
to intervene as Parties
Plaintiffs in the court proceedings. The Senators declared that they have a
“substantial protective interest” in the process of interpreting the Compact.
The Senators argued in their motion that the Compact is a “quintessential
creature of the legislature,” and that they “are in privity of contract under
the Compact and, thus, must be permitted to participate in this action to the
same extent as any contracting party is permitted in an ordinary contractual
dispute.”
In
addition, the Senators pointed out that they must be allowed to intervene in
the proceedings because they have fiduciary duties as trustees of the natural
resources of Pennsylvania. In their brief in support of the motion to
intervene, the Senators explained that they have a “cognizable property
interest” in the issue, before adding that “the Commission’s moratorium is not
confined to private property, but also extends to Commonwealth-owned property
that is part of the Trust, over which the Senators and other elected officials
have trustee obligations.”
The
U.S. District Court granted
the Senators’ motion to intervene on the same day of its filing; however, the
Court has yet to issue a written opinion supporting its order.
Interestingly,
in October 2016, the three Senators filed a motion to intervene in this
proceeding, but such motion was denied in January 2017. At that time, the court
declared that “once legislation is enacted, legislators such as the three
Senators seeking to intervene in this litigation, do not have a significantly
protectable interest in its implementation to entitle them to intervene as of
right.”
More
information concerning the case Wayne
Land and Mineral Group, LLC v. Delaware River Basin Commission is available
at docket no. 3:16-cv-00897.
Stay
tuned for further legal developments!
This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
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