HomeEnvironment & Climate NewsFederal Judge Upholds Delaware Basin Fracking Ban

Federal Judge Upholds Delaware Basin Fracking Ban

Federal Judge Paul Diamond United States District Court for the Eastern District of Pennsylvania rejected a lawsuit filed by two Pennsylvania state senators and four local governments in the oil-rich Marcellus Shale region.

Plaintiffs had sought to overturn a permanent ban on natural gas drilling and hydraulic fracturing (fracking) issued by the Delaware Basin River Commission [DRBC] impacting 17 Pennsylvania counties.

With more than 13,000 wells having been drilled, other counties in Pennsylvania overlying the Marcellus shale have benefitted from fracking. Production in the Marcellus Shale has turned Pennsylvania into the nation’s second biggest gas producing state.

By contrast, New York and New Jersey have banned fracking statewide. Despite fracking’s economic boost to Pennsylvania’s economy and the state’s revenues, Pennsylvania Gov. Tom Wolf issued a moratorium in 2015 on issuing new drilling leases on state-owned land, that remains in place.

Political Matter

The DRBC had issued a moratorium on fracking in 2009, which was still in effect until the commission instated the permanent ban in February 2021.

Until the ban, the owners of over 300 square miles of Delaware Basin land were reportedly receiving lease payments from natural gas companies.

The moratorium, now made permanent, has left farmers and other landowners without the ability to develop their property for oil and gas production, a right other Pennsylvania have and are profiting from.

In his ruling, Diamond found the lawsuit was essentially a partisan dispute best resolved through the political process.

Plaintiffs Challenge Constitutionality

Pennsylvania state Sen. Gene Yaw (R-Loyalsock Township) and state Sen. Lisa Baker (R-Lehman Township), the Pennsylvania Senate Republican Caucus (PSRC), Damascus Township, Dyberry Township, Wayne County, and Carbon County, sued to overturn the DRBC’s oil and gas drilling ban arguing it constituted an unconstitutional taking of property from Pennsylvania mineral rights owners and taxing authorities.

The plaintiffs also argued, the DRBC, whose members include a federal government representative (who abstained) and the governors of Delaware, New Jersey, New York, and Pennsylvania, lacked authority to ban fracking in the 17 affected Pennsylvania counties. They reasoned since Wolf lacked the authority to unilaterally ban oil and gas production on private land within the region, and the other representatives on the DRBC have no jurisdiction in Pennsylvania whatsoever, the DRBC also lacked the authority to ban fracking in Pennsylvania.

Plaintiffs also argued the ban was unjustified because fracking posed no environmental threat to the Delaware River Basin. To support this claim they pointed to a study by the neighboring Susquehanna River Basin Commission that found no link between intensive gas drilling in the Marcellus and degradation of the watershed.

Diamond ruled Yaw, Baker, and the PSRC lacked standing to challenge the DRBC’s action, but he did give the four local government’s time to file an amended lawsuit in which they would have to be able to “articulate how the moratorium has actually injured them.”

‘Harms Working-Class … Families’

DRBC’s decision disregards science, the good of the country, and the welfare of Pennsylvania families, says David Callahan, president of the Marcellus Shale Coalition.

“We are extremely disappointed in Gov. Wolf, who aligned with out-of-state interests to jam through a fracking ban that directly harms working-class Pennsylvania families,” said Callahan. “The Biden Administration’s lack of action to prevent this ban, along with the President’s economically devastating anti-energy executive orders – which have already put tens of thousands of skilled union laborers out of work – does absolutely nothing to help America.

“The Commission’s blatant disregard for scientific evidence and bodies of independent research – including from the neighboring Susquehanna River Basin where continuous water quality and quantity monitors have shown no impact from shale development – further demonstrates the purely political nature of this action,” Callahan said.

Ban impairs Pennsylvania’s economy

DRBC’s basin-wide oil and gas ban was “a political decision uninformed by science,” that will harm the state’s and the region’s economies, said Gene Barr, president of the Pennsylvania Chamber of Business and Industry in a statement issued at the time DRBC’s fracking ban took effect.

“We are extremely disappointed to see Governor Wolf vote in lock step with the other states in the Delaware River Basin Commission to ban drilling and activities related to natural gas development in the basin,” Barr’s statement said. “The votes by New York, New Jersey, and Delaware provide further evidence that these states do not have Pennsylvania’s best interests in mind.

“These states have obstructed infrastructure development that would have delivered Pennsylvania’s energy to the states and to customers in New England, where shamefully they have had to rely on foreign natural gas, including a tanker from Russia,” Barr said. “These states have also taken regulatory actions to hamper the operating environment for manufacturing and energy resources, and [DRBC’s] vote should give policymakers further pause in further coordination with these states on energy policy, such as joining the Regional Greenhouse Gas Initiative.”

The Biden administration also bears some of the blame for DRBC’s decision, and its inaction contradicts the President’s stated commitment to promoting American jobs, Barr’s statement said.

“Finally, the federal government’s decision to abstain from this vote is extremely disappointing, given the national energy security implications of reduced domestic energy development and President Biden’s stated commitment to reducing emissions and re-shoring manufacturing,” Barr said. “With our economy reeling due to the pandemic and associated lockdown measures, and recent events highlighting how imperative energy production is, this is no time to let irresponsible voices carry the day and impede energy development.”

Duggan Flanakin (dflanakin@gmail.com) writes from Austin, Texas.

Official Connections:

Pennsylvania state Sen. Gene Yaw (R-Loyalsock Township): https://www.senatorgeneyaw.com/; https://www.senatorgeneyaw.com/contact-me/capitol-office/

Pennsylvania state Sen. Lisa Baker (R-Lehman Township): https://www.senatorbaker.com/; https://www.senatorbaker.com/contact-me-2/

Duggan Flanakin
Duggan Flanakin is the Director of Policy Research at the Committee For A Constructive Tomorrow. A former Senior Fellow with both the Texas and Arkansas Public Policy Foundations, Mr. Flanakin has a Master's in Public Policy from Regent University. During the years he spent reporting on environmental regulation in Texas and nationwide, Mr. Flanakin authored definitive works on the creation of the Texas Commission on Environmental Quality and on environmental education in Texas.

1 COMMENT

  1. Well, economic arguments gain “no traction” with environmental ZEALOTS. They don’t care how many jobs are lost, diminishment of sub-surface property rights (mineral owners royalties) or that they have NO CONSTRUCTIVE alternative to replace 80% of our nations primary energy (fossil fuels). All an ACADEMIC exercise (to them) at this stage. There are (now) several DOZEN legitimate, peer reviewed scientific studies that all have the same top line finding: No systematic contamination of groundwater by hydraulic fracturing. Just FACT. As I recall, Penn State had a study out about 3-4 years ago that involved 11,000 water samples. You could start there with backyard ACTUAL science. Punch Line: As our electric grid continues to “unravel” due to over reliance on intermittent generating sources (i.e. wind & solar) and gasoline continues it’s upward pricing, consumers will get a full taste of what is to come with the Green New Deal fixation. When you fail to consider energy imperatives, you lead yourself down the road to energy POVERTY…

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