Fracking case going to trial

By OWEN WALSH
Posted 1/13/21

HONESDALE, PA — Environmentalists, a private landowner and the Delaware River Basin Commission (DRBC) will all get their day in court after five years of litigating a case over fracking in the …

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Fracking case going to trial

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HONESDALE, PA — Environmentalists, a private landowner and the Delaware River Basin Commission (DRBC) will all get their day in court after five years of litigating a case over fracking in the Delaware River Basin.

“Fracking,” short for hydraulic fracturing, is a drilling technique in which liquid and other materials are injected into the ground at high pressures to extract natural gas (or other energies) from shale formations thousands of feet below the surface. Fracking has been a hot-button issue for years between environmentalists and the fossil fuel industry. Critics say that it poses threats to communities’ water resources—due both to the amount needed and the risk of contamination—air quality and the climate in general, among other concerns. Its proponents, on the other hand, argue that it’s safe, lowers energy prices and provides a lucrative opportunity to landowners.

Wayne Land and Mineral Group, known commonly as Wayne Land, owns about 180 acres on the watershed line between the Delaware and Susquehanna river basins. The company intends to pursue well pad fracking activities on the Delaware side of that watershed line. Wayne Land argues that those activities do not equate to a “project” as it’s defined by the DRBC—an interstate commission that oversees the well-being of the Delaware River. And if it’s not a “project,” Wayne Land says it isn’t subject to the commission’s review. The DRBC has been opposing this argument since 2016.

The word “project” is defined in the commission’s compact—a legal agreement among Pennsylvania, New York, New Jersey and Delaware. But the definition of the term has yielded more haze than clarity, hence the years of arguments and appeals.

The Middle District Court of Pennsylvania originally sided with the DRBC in 2017. But in July 2018, the U.S. Third Circuit Court of Appeals sent the case back to the district court, saying that the grey areas in the commission’s language needed clearing up.

At its heart, the case deals with the question of whether or not the commission can restrict the natural gas industry from fracking in the basin. The DRBC has not gone so far as banning fracking in the Delaware, but it did place a moratorium on the practice in 2010 to allow for further investigation into its effects. Interested parties say that if Wayne Land’s well pad drilling activities are not deemed a “project” by the court, it would result in an “immediate undermining” of the fracking moratorium.

The environmental nonprofit Delaware Riverkeeper Network is an intervenor in the case, working to block the natural gas industry from moving into the basin.

A long series of court documents and legal maneuvers have taken place since 2016. Most recently, the DRBC made a motion for partial summary judgment, asking the Middle District Court of Pennsylvania to essentially split up the details of the case into separate parts. Instead of a ruling on the entire scope of Wayne Land’s proposed activities, DRBC asked for a more focused ruling that the equipment involved, such as water storage tanks, fit under the definition of a “project” and not a broader ruling on the actual extraction of natural gas. Wayne Land soon filed a brief opposing that motion.

Last week, U.S. Judge Robert Mariani ruled that he still needs more clarity. Mariani denied the commission’s motion for partial summary judgment, citing lingering ambiguity. He also denied a separate motion from the Riverkeeper for summary judgment.

“The foregoing arguments show that ambiguity remains as to the compact’s definition of ‘project’ and the court, at this stage of the proceedings, should not decide the drafter’s intent,” Mariani wrote in his opinion denying the commission’s motion.

The commission doesn’t comment on ongoing litigation. However, the Riverkeeper Network’s chief executive director Maya K. van Rossum released a statement in response to the judge’s ruling.

“The presentation of the law at issue is complicated. The science and facts regarding the devastating impacts of shale gas extraction are voluminous. And that [Wayne Land] was unwilling to admit to any of the demonstrable truths and impacts of shale gas extraction... made it pretty impossible for the judge to issue a summary judgment ruling,” van Rossum said. “But we are confident that when we are given our full day in court, both through briefings and detailed oral argument, that the legal authority, right and obligation of the DRBC to fully regulate all aspects of fracking, including prohibitions, will be upheld by the courts.”

Honesdale-based planning and design consultant Tom Shepstone is informally working with Wayne Land in this case and has been keeping readers of the site Natural Gas Now abreast of the litigation. He sees the judge’s decision as a positive development for Wayne Land.

“Importantly, the DRBC has already softened its position. It no longer maintains a well pad or natural gas development itself is a project but, rather, argues that water-related equipment such as produced flow storage tanks would constitute a project subject to its purview,” Shepstone said in an email. He argues his opinion further in a post on Natural Gas Now that the DRBC has “forced itself into a corner” by softening its approach.

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