Federal court rules fracking advocates will get their day in court

Wayne County group: Delaware River Basin Commission lacks authority to block drilling

  • Susan Phillips

A federal appeals court has overturned a lower court’s ruling, paving the way for a group of northeast Pennsylvania landowners to challenge the Delaware River Basin Commission‘s authority to regulate gas drilling in that region.

The case now hinges on the definition of “project” spelled out in the commission’s governing document, known as the Delaware River Basin Compact.

The Wayne Land and Mineral Group owns about 75 acres that include shale gas deposits but that are within an area regulated by the commission. The DRBC, a multi-state body that oversees water use and water quality in the Delaware watershed, has imposed a de facto moratorium on gas drilling since 2009. The group sued the commission, arguing it does not have the authority to prohibit its plans to drill for gas on its properties.

In March, 2017, the U.S. District Court threw out the group’s lawsuit, saying plans to drill for natural gas constitute a “project” as defined under the DRBC’s “Compact,” which has governed the commission since 1961.

On Tuesday, a three-judge panel from the Third Circuit Court of Appeals ruled that “project,” as defined in the compact, is ambiguous enough to require a new hearing by the district court. That means the Wayne Land and Mineral Group has another chance to prove its case.

David Overstreet, who represents the Wayne Land and Mineral Group, says his clients are “ecstatic.”

“Now they can go back and be heard,” he said. “And they think presenting the evidence will make a compelling story.”

Overstreet said his clients are not against regulation, as drilling is already regulated by the state. He said they object to other states represented on the commission deciding how they can use their land.

“It’s dictating to two counties in Pennsylvania what they can and cannot do,” Overstreet said. “And that should be troubling to all people. The state of New York, New Jersey and Delaware can now dictate what Pennsylvania residents can and cannot do.”

Although Pennsylvania under former Republican Gov. Tom Corbett supported gas drilling in the basin, Gov. Tom Wolf has supported the moratorium.

The Third Circuit didn’t rule as to whether the DRBC has jurisdiction, or whether a gas well is a “project” to be regulated. It said the compact should be viewed as a contract under the law. It also noted that there are other parts of the compact, not addressed in the lawsuit, which could dictate the DRBC’s jurisdiction over gas drilling.

“We emphasize that we are presented with a question about the Commission’s authority to review and approve ‘projects’ under § 3.8 of the Compact,” wrote 3rd circuit judge Kent Jordan. “We are not considering the Commission’s authority under any other provisions, such as §§ 5.1-5.5, which address pollution control. We take no position on whether Article 5 provides the Commission an alternative jurisdictional basis to require advance approval of fracking activity.”

Overstreet says that’s an argument for another day, but the definition of “project” is currently preventing the landowners from tapping the shale gas.

Jordan Yeager represents the Delaware Riverkeeper Network, which is an intervenor in the case supporting the DRBC.

“The DRBC may have regulatory authority over fracking regardless of how this question gets answered,” Yeager said. “Because there is other language in the compact beyond that one section they’re addressing [in the lawsuit].”

The DRBC would not comment on the case. It is reviewing comments on its proposal to permanently ban fracking in the basin.