Democrats and Republicans square off in court over Delaware River Basin Commission fracking ban

The Harrisburg political battle over fracking has shifted venues from the Pennsylvania State Capitol to the U.S. District Court in Philadelphia.

A group of Democratic State Senators on Thursday filed a motion to dismiss a federal lawsuit filed by Republican lawmakers earlier this year that challenges a ban on natural gas development in the Delaware River Basin, in northeastern Pennsylvania.

The 16 Democratic senators said the Republicans lack standing to bring the suit and failed to state a claim upon which relief can be granted. “We argue that there are really no claims here,” Steve Miano, lawyer for the Democrats, said Thursday.

The Democratic lawmakers seemed particularly irked that the Republicans, in challenging the drilling ban, invoked Pennsylvania’s Environmental Rights Amendment of 1971 to support their arguments that the state legislature has authority over natural resources. The Republican’s interpretation of the ERA, a law championed by environmentalists, was “perverse,” the Democrats said.

State Sens. Gene Yaw (R., Lycoming) and Lisa Baker (R., Luzerne), the Pennsylvania Republican Caucus, and several local governments including Wayne and Carbon Counties filed suit to challenge a drilling moratorium imposed in 2010 by the Delaware River Basin Commission (DRBC), the interstate agency that manages water use in the vast Delaware watershed. The four-state agency upgraded the moratorium to a permanent fracking ban in February.

The court last month allowed the Democratic senators to intervene in the lawsuit — all but four of the state’s 20 Democratic senators signed on. Their filing on Thursday is similar to a motion filed last month by the Delaware Riverkeeper Network, the environmental advocacy group that has also intervened in the lawsuit.

State Sen. Steve Santarsiero (D., Bucks) and other elected officials announced the motion at a news conference on Thursday. Montgomery and Bucks County officials are also seeking to intervene in the Democrats’ lawsuit.

Matthew H. Haverstick, the lawyer for the Republicans, on Thursday dismissed the arguments of the Democratic senators.

“I hope these senators explain why residents of northeast Pennsylvania shouldn’t be allowed to use their property the way they want to,” Haverstick said in an email. “And why these senators are so willing to surrender state sovereignty and legislative authority to an unelected bureaucracy.”

Though the lawsuit pitting rival senators has great potential for political theater, the bigger immediate legal challenge to the DRBC’s drilling ban is a separate federal lawsuit filed in 2016 by a Wayne County landowners group that challenge’s the agency’s jurisdiction. U.S. District Judge Robert D. Mariani has set an October trial date in Scranton to hear that case.

The lawsuits could potentially rein in the interstate agency, which Congress created in 1961 to manage water resources in the 13,539-square-mile region where water is captured by the Delaware River and its tributaries. The basin encompasses parts of Pennsylvania, New Jersey, Delaware, and New York, whose governors comprise the voting members of the commission, along with a federal representative.