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Court ruling puts WLMG fracking lawsuit back in play

The Wayne Land and Mineral Group (WLMG) has been involved in a lawsuit against the Delaware River Basin Commission (DRBC) and the Delaware Riverkeeper Network (DRN) over the current default ban on hydraulic fracturing in the basin and the proposed permanent ban. That case was dismissed last fall by a District Court, but WLMG appealed the dismissal, and on July 3, the United States Court of Appeals, Third Circuit handed down a ruling reversing the dismissal, sending the case back to the lower court for further review.

Ned Sader, managing director for the Upper Delaware River Basin Citizens (UDRBC), a pro-fracking and proprety rights group, issued a statement that said, ‘The UDRBC and its many partners congratulate Wayne Land and Mineral Group, LLC on its favorable ruling by the U.S. Third Circuit Court of Appeals. Over the past decade the entire basin has been subject to an intergovernmental organization which has blatantly exceeded its authority as specified by the language within the 1961 document which established such.

“The factual science now established and the proven environmental record of Natural Gas Exploration and Development (NGED) across Pennsylvania clearly exemplifies that any further opposition to allowing such, in counties within the basin, is being perpetuated by the special interests which control both the DRBC and DRN.”

Riverkeeper Maya van Rossum also issued a statement that said, “The Delaware River Basin Commission has broad and irreplaceable authority to protect the water resources of the Delaware River watershed… Science, facts and experience demonstrate that drilling and fracking for shale gas has significant, substantial, consumptive and devastating impacts on water resources and that the substantial, devastating and irreparable harms inflicted are not preventable by regulation; they are an inherent and unavoidable result of this highly industrial extractive process.”

But the court itself said it reversed the dismissal in part because “We conclude that the meaning of the word ‘project’ as used in the [DRBC] compact is ambiguous….” The court questions whether the creators of the DRBC Compact intended that word in a way that would allow the DRBC to adopt rules that would prohibit fracking, and concluded: “Fact-finding on the intent of the compact’s drafters” is needed.

The compact defines “project” as “any work, service or… facility… for the conservation, utilization, control, development, or management of water resources.” That definition of “project” would not seem to include fracking platforms or other machinery related to drilling and fracking.

The court wrote that it found problems with the “project” question on both sides. It wrote, “To be clear, at this stage, we are not adopting or endorsing either Wayne’s [WLMG] interpretation or the Commission’s (DRBC), or anyone else’s. We are simply noting that the parties have posited potentially reasonable interpretations that bear their own strengths and weaknesses.” 

But the compact is long and complex and other parts of it would seem to allow DRBC to enforce regulations on any operations that might threaten to pollute the waters of the basin. In relation to this the court writes, “It is plain that the Commission has broad rulemaking and enforcement powers. Under Article 14 of the Compact, the Commission may ‘[m]ake and enforce reasonable rules and regulations for the effectuation, application and enforcement of this [C]ompact[.]’

The court also wrote in a footnote that the only question it is considering is whether a fracking operation would be considered a “project’ under the DRBC compact and not whether DRBC could enforce regulations against fracking operations that might be covered by other parts of the compact such as those addressing potential pollution.

Jordon Yeager, lead counsel for the Delaware Riverkeeper Network, in his statement, said, “The Court of Appeals recognized the importance of these issues and is giving the parties the opportunity to establish a full record on remand to the District Court. We are confident that when a full record is established, the courts will conclude that the DRBC has not only the authority to regulate fracking and related infrastructure, but the absolute duty to do so.”

Even the lawyers will have to go through an arduous tussle in order to determine what exactly “project” meant to the creators of the Delaware River Basin Compact, and we’re no lawyers. (Visit https://bit.ly/2m1ujb0 if you want to have a go at it yourself.) That said, it seems clear that in the case of a body of water like the Delaware River, on the purity of whose waters over 15 million people depend, and which travels through territory governed by a variety of different states, there is an absolute necessity for some kind of agency that has the power to regulate activities of any group of people, in any state, that could destroy the quality of that water for all who use it.

We believe this to be true regardless of whether one thinks that fracking is, or is not, harmful. If the outcome of the WLMG suit were to take away the DRBC’s power to prevent pollution from any industrial activity that did not conform to a very narrow definition of “project,” the health and lives of all of us who depend on the Delaware’s purity would be under threat. We need to be vigilant and start thinking about a plan B—legislation?—if such a result seems to be on the horizon.

 

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