Pa. GOP state senators sue Delaware River commission over fracking ban

Republicans in the Pennsylvania state Senate are asking the federal courts to declare that the Delaware River Basin Commission's ban on fracking in the counties under its jurisdiction is an unconstitutional infringement on their rights as state lawmakers.

The Senate Republican caucus, led by Sen. Gene Yaw, who represents Pennsylvania's northeast dry gas shale counties and chairs the Senate's Environmental Resources and Energy committee, claims the federal river commission's ban infringes on their role as custodians of the state's natural resources and managers of the various monies generated by permit and impact fees.

"By usurping legislative and regulatory authority existing under the constitutional framework of the Commonwealth of Pennsylvania — and replacing state law with the dictates of a notice issued by an unelected official employed by an interstate agency — the Commission has deprived 5.5 million Pennsylvanians of their ability to choose their laws and governmental structure," the senators' new suit claimed. The senators withdrew in June 2020 from an earlier suit by a group of Wayne County landowners after an appeals court said the legal standing and goals of the legislators are distinct and different from landowners seeking to lease their land for oil and gas extraction.

Yaw did not reply to a request for comment about the timing of a new and separate suit challenging the commission's regulatory reach.

The legal challenge questions the ability of the nearly 60-year-old commission to regulate oil and gas extraction in the river counties under its jurisdiction. Although the commission's authority to regulate water use extends to 17 Pennsylvania counties, only two — Wayne and Pike, in the northeast corner of the state — are thought to have marketable quantities of Marcellus Shale gas. Wayne is the eastern neighbor to Susquehanna County, long the top gas-producing county in the state.

The landowners and the senators contend that the commission's regulation of water in the Delaware River watershed does not include regulation of oil and gas wells that can manage their own water use and treatment under Pennsylvania's regulatory regime.

The commission, which decides how much water towns and companies in the counties bordering the Delaware River in four states can withdraw from or discharge into the river, declared a moratorium on fracking through its territory in May 2010. The commissioners — representing the four states along the river as well as the federal government — voted 3-1 to proceed with a ban on fracking in September 2017. Commissioners for Pennsylvania, New York and Delaware voted in favor of the fracking ban, New Jersey abstained and the federal government's representative voted against a ban.

Six years ago, the commission shelved a plan to regulate gas drilling along the river after receiving more than 60,000 comments and public protests that saw environmental groups squaring off against landowners and the gas industry.

There are no producing wells in either Wayne or Pike counties, according to the Pennsylvania Department of Environmental Protection's database. Hess Corp., Ovintiv Exploration Inc., Chesapeake Energy Corp. and Stone Energy Corp. plugged what few active wells they operated in Wayne County within weeks of a 2013 decision to keep the moratorium in place. No unconventional wells were ever spudded in Pike County.

With most of Pennsylvania's shale gas drillers hunkered down to ride out low gas prices, drilling only enough wells to keep their production profiles flat, there is little indication of demand for land for new wells.