In a brilliant move aimed at boxing in the Delaware River Basin Commission (DRBC), two northeastern Pennsylvania State Senators--Gene Yaw and Lisa Baker--along with members of the PA Senate Republican Caucus, filed a lawsuit yesterday against the DRBC, accusing the quasi-governmental agency of "taking" the property rights of PA residents without just compensation under the law. The DRBC has, for more than a decade, refused to allow shale gas drilling in its jurisdiction, which includes portions of Wayne and Pike counties in northeastern PA. The DRBC has floated the concept of a permanent ban but has never actually conducted a final voted to permanently ban fracking in the Basin (see Governors from PA-NY-DE Vote to Ban Fracking in Dela. River Basin). The ongoing refusal to allow shale drilling is, however, a de facto ban on drilling. The Senators say such a de facto ban is a "taking" by the government under the U.S. Constitution, and citizens in that region blocked by the DRBC's action are entitled to receive just compensation. Here's why we say this new lawsuit is a brilliant move. As we told you last week, a lawsuit launched by Wayne County landowner Wayne Land and Mineral Group (WLMG) some five years ago is still very much alive and heading for a final round where it will be decided (see Judge Rules Wayne Landowner Lawsuit re DRBC Frack Ban Continues). That lawsuit asks the court to rule that a "project" under the DRBC compact definition does not include drilling for shale gas. If WLMG wins its case, the DRBC will no longer be able to block fracking in the Basin--a win. On the other hand, if WLMG does not win its case and the DRBC continues to block fracking activity in the Basin, this new lawsuit filed by the PA Senator (if won) means the DRBC will owe huge amounts of money (one source estimates over $10 billion!) to landowners in Wayne and Pike counties, bankrupting the DRBC--a win. We've got the DRBC legally trapped. It's a pretty safe bet one or both of these lawsuits against the DRBC will prevail, meaning PA landowners will, finally, see justice. This new lawsuit ensures a win in either direction. A biased article about the new lawsuit, from PA Environment Digest Blog: On January 11, the PA Senate Republican Caucus filed a lawsuit in the federal Eastern District Court of Pennsylvania alleging the Delaware River Basin Commission's moratorium on shale gas drilling is a taking of private property without compensation and exceeds the authority given the Commission in its compact. Sen. Gene Yaw (R-Lycoming), who served as Majority Chair of the Senate Environmental Resources and Energy Committee last session, and Sen. Lisa Baker (R-Luzerne) as well as Damascus Township in Wayne County joined in the lawsuit against DRBC. This is the first major Senate Republican environmental initiative of the new legislative session. The lawsuit is being filed in support of ongoing legal efforts by Wayne County landowners to overturn the Delaware River Basin drilling moratorium dating back before 2017. Previous attempts by Sen. Yaw and Sen. Baker to intervene in support of federal lawsuits by the Wayne County landowners against the moratorium have been unsuccessful or withdrawn by the Senators. DRBC has proposed a permanent ban on one process for developing Shale gas-- fracking-- in November, 2017 for public review. In its last public statement on the proposal in April 2018, the Commission said it had no timetable for finalizing the fracking ban. The new lawsuit says the plaintiff filed the action in part based on their obligations under the state's Environmental Rights Amendment to be a trustee of the state's public natural resources. This was the same legal argument the Senators used when they unsuccessfully tried to intervene in support of the Wayne County lawsuit in July of 2019. Under this trustee responsibility, the new lawsuit says Senate Republicans cannot allow these resources to be managed in a manner inconsistent with the Environmental Rights Amendment, including any revenues derived from the sale of these resources. The lawsuit says the "General Assembly has substantial discretion in determining the specific allocation of the money in the above-referenced funds—i.e., the Well Fund, the Marcellus Legacy Fund, the Lease Fund, the Environmental Stewardship Fund, and the Hazardous Sites Cleanup Fund—albeit subject to certain restrictions stemming from its trustee duties." The ironic use of the Environmental Rights Amendment in the lawsuit ignores a 2017 PA Supreme Court ruling on just these trustee responsibilities that declared unconstitutional the General Assembly’s transfer of monies from DCNR's Oil and Gas Fund and to other funds to help balance the state General Fund budget in ways that do not fulfill these obligations. The lawsuit also says the plaintiffs are acting under their authority to oversee permit fees and expenditures coming into the Unconventional Gas Well Fund which provides funding to communities impacted by shale gas drilling and supports DEP Oil and Gas Management Program. They allege, as a result of the DRBC moratorium, Damascus Township is prevented from participating in these programs unlike neighboring communities which also have shale gas reserves. The lawsuit asks the court to-- -- Declare that the Delaware River Basin Commission drilling moratorium exceeds the power granted to it by the interstate compact forming the Commission; -- Declare the moratorium an unconstitutional regulatory taking; -- Declare the moratorium an unauthorized attempt to exercise the General Assembly's power of eminent domain; and -- Declare the Delaware Compact illegal under Article IV, Section 4 of the U.S. Constitution guaranteeing each state a republican form of government. If successfully declared a taking by the federal court in a final action, compensation would presumably be due the landowners affected by the moratorium. It was suggested at a House hearing in 2019, the value of the drilling rights in the areas affected by the moratorium could be $10 billion.* *PA Environment Digest Blog (Jan 12, 2021) - PA Senate Republican Caucus Files Lawsuit Against Delaware River Basin Commission Over Shale Gas Drilling Moratorium Lawsuit filed yesterday by PA Senators: