The Delaware River Basin Commission (DRBC) permanently banned high volume hydraulic fracturing (fracking) throughout the Delaware River Watershed in 2021 after many years of battles between …
The Delaware River Basin Commission (DRBC) permanently banned high volume hydraulic fracturing (fracking) throughout the Delaware River Watershed in 2021 after many years of battles between environmental activists and the natural gas industry.
The Commission, which is overseen by the governors of New York, New Jersey, Pennsylvania and Delaware, determined that fracking “poses significant, immediate and long-term risks to the development, conservation, utilization, management, and preservation of the [Basin’s] water resources.”
An attempt by a handful of state lawmakers to overturn that ban on hydraulic fracking in the Delaware River Basin was rejected in a federal appeals court earlier this month.
A lawsuit challenging the ban was brought by two Pennsylvania state senators, the Pennsylvania Senate Republican Caucus, and several Pennsylvania municipalities.
The lawsuit alleged that by enacting the ban, the Commission “exceeded its authority under the Delaware River Basin Compact, violated the Takings Clause of the United States Constitution, illegally exercised the power of eminent domain, and violated the Constitution’s guarantee of a republican form of government.”
Although the state lawmakers who advanced the lawsuit made several arguments for why they have standing to challenge the ban, the appeals court found that none of them have alleged the kinds of injuries that the basis for their legal challenge demands.
In their determination, the appeals court found that the state senators and the Senate Republican Caucus lacked standing because the legislative injuries they allege affect the state legislature as a whole, and under well-established Supreme Court caselaw, “individual members lack standing to assert the institutional interests of a legislature.”
The court found that the municipalities lack standing because the economic injuries they allege are “conjectural” and “hypothetical” rather than “actual and imminent.”
In their final filing earlier this month, the appeals court admits that their determination is narrow in scope. Future challenges to the ban on fracking in the Delaware River Basin are sure to follow.
The Delaware River represents a vital resource for millions of people across several states. Environmental protection is inherently linked to public health and long-term economic viability. Local and state governments, as well as business groups and nonprofit organizations, have a responsibility to ensure we protect our resources now and for future generations.
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