A Fracking Ban Just Got Gutted by the Supreme Court If the Industry Will Only Bring the Case THOMAS J SHEPSTONE
One of those agencies was the Delaware River Basin Commission (DRBC). It is composed of four states (Delaware, New Jersey, New York and Pennsylvania) plus the Federal government represented
A Fracking Ban Just Got Gutted by the Supreme Court If the Industry Will Only Bring the Case
JUL 4
Back in the day (2012) when Vermont banned fracking, the oil and gas industry foolishly responded by doing nothing. After all, we all laughed, the state might as well have banned pineapple farms and orange groves, there being no known natural gas resources in the Green Mountain State. That cockiness seemed justified at the time because there were plenty of places to drill and no one cared what a bunch of Vermont virtue-signalers with no gas did. But, it was a huge mistake to ignore Vermont’s demagoguery.
It was a mistake because Vermont tested the waters and made it thinkable that a government could ban a form of technology. That led, two years later, to corrupt self-hating New York doing the same thing and California effectively followed in 2021. Meanwhile, all sorts of agencies and municipalities did the same thing. What started as a silly political maneuver became a trend the industry and those who benefit from it have had to fight, joining the battle only after the enemy had crossed its borders.
One of those agencies was the Delaware River Basin Commission (DRBC). It is composed of four states (Delaware, New Jersey, New York and Pennsylvania) plus the Federal government represented by the Army Corps of Engineers. The same governing majority of New York, Pennsylvania and the Feds also effectively controls the Susquehanna River Basin Commission (SRBC) where fracking has been permitted for almost two decades with “no discernible effects” on stream water quality. Nonetheless, wearing their DRBC hats, this same majority decided they'd ban it there.
The DRBC rationale for this very political action was laid out in the agency's earlier response to a court case brought by the Wayne Land & Mineral Group, LLC against the agency. A nice summary of the case may be found here (starting on page 446) and the following are some brief excerpts (emphasis added):
Plaintiff Wayne Land and Mineral Group, LLC (“WLMG”) filed a complaint against the Defendant Delaware River Basin Commission (the “DRBC”) seeking declaration that the DRBC did not have jurisdiction over oil and gas projects. The DRBC filed a motion for partial summary judgment asking the court to declare that WLMG’s (“Plaintiff”) planned activities of drilling for natural gas and related uses of land constituted a project within the meaning of the Delaware River Basin Compact. The court denied said motion and did not grant summary judgment to the DRBC…
The DRBC argued that because the WLMG’s proposed activities would penetrate an aquifer and return wastewater to the surface, its actions should be subject to DRBC review. The WLMG refuted this stating that:
…until its recent assertion of jurisdiction over gas wells, and now their component parts, the Commission routinely exercised jurisdiction over prototypical water resource development and management projects. The Commission reviewed water supply wells, industrial and public water supplies, wastewater treatment plants, navigation projects and surface water outtakes. The Commission, however, did not review any of the thousands of residential, commercial or industrial developments in the Basin or their component parts.
Due to the disagreement about the course of performance, the District Court declined to assess the arguments during pretrial motions…
Ultimately, the District Court denied the motion for summary judgment because of the ambiguity related to the term “project” found by both it and the Circuit Court.
Note the last part about ambiguity, which is extremely important. Under the infamous and now overturned Chevron decision the Supreme Court had, four decades ago, allowed agencies to interpret the ambiguities of the very statutes under which they had been authorized to do things. That decision allowed agencies to continually expand their jurisdictions without ever going back to lawmakers or the courts, giving bureaucrats unprecedented ability to effectively write law.
The history of the WLMG lawsuit involved two visits to the Third Circuit Court of Appeals and fairly clear instructions to the District Court to remove the ambiguity and define what a DRBC project was. But, it never got that far because the DRBC suspected its goose was cooked on that issue. So, it decided it had better go to Plan B instead.
Plan B amounted to a fracking ban just like Vermont had done years earlier, even though the DRBC was clearly about water and not land use or energy development. It chose to rely upon a water quality section of the DRBC Compact for the ban rather than its "project” definition, in fact, which was simply another way to get the same end. That end was an extension of its authority by interpreting its own compact to its own advantage.
The Circuit Court's decision returning the WLMG case to the District Court noted:
The Commission contends that its interpretation of the term "project" is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
The DRBC fracking is yet to be challenged but, I suspect, will be, sooner rather later, now that Chevron has wisely been overruled. That's because the thoroughly corrupted DRBC, which took money from the William Penn Foundation at the same time the latter’s paid shill was suing the agency, clearly also implicitly relies upon Chevron for the authority to do what it has done in no other case, all but ban an industry, just as it did with respect to its "project” definition. Read the resolution adopted by the agency and, in particular, its citations of authority, which come not from the DRBC but, rather, its own Water Code.
The recent Supreme Court justly throwing out Chevron, has the DRBC members who enacted the ban having meltdowns. They should be scared because their twisting and turning of the law has expanded the bureaucratic estate and fashioned an unaccountable tyranny out of it. The DRBC has taken out its own license to steal and now it should held accountable for it. It has served the interests of elites at the William Penn Foundation and their brethren and shills for far too long. Moreover, the industry needs to take up the task of “suing the bastards” as a signal to other agencies and states that they will no longer be able to get away with this stuff. Dunk the DRBC!