NEW HOPE BOROUGH >> Standing on the banks of the glistening Delaware River Friday afternoon, State Senator Steve Santarsiero and the Senate Democratic Caucus fired back against a federal lawsuit filed by their Republican counterparts seeking to overturn a fracking ban imposed by the Delaware River Basin Commission (DRBC).
“Today, we filed papers in the federal district court of the Eastern District of Pennsylvania to intervene in the case ‘Yaw vs. the Delaware River Basin Commission,’ which our Republican colleagues filed in January, so that we can ultimately move to dismiss the case,” said Santarsiero, who represents the 10th District of Pennsvania. “Suffice it to say we are on strong legal grounds because we are standing up to vindicate the environmental rights amendment, to vindicate the right of every Pennsylvanian to clean air, pure water and the preservation of our natural resources. And we are not going to rest until we do exactly that.”
In January, Republican State Senators Lisa Baker and Gene Yaw, along with officials in Damascus Township (Wayne County), filed a federal lawsuit seeking to overturn a ban on fracking in the Delaware River Basin.
Filed in federal court in Philadelphia, the suit challenges the DRBC’s authority to regulate fracking in the basin and contends that the DRBC is usurping lawmakers’ ability to govern. It asks that the court declare the commission’s actions unconstitutional.
“The DRBC ban is not just an assault on a highly regulated industry that employs thousands of Pennsylvanians, but it’s another example of neighboring state’s dictating our energy policy,” Senator Gene Yaw said. “The Commission is using New York’s failed policies to institute a ban on development. Pennsylvania has robust rules and regulations in place to protect our environmental resources, which have allowed for the safe development of natural gas in our state. This action serves to undermine economic development and job growth in the region and statewide.”
Santarsiero called the GOP lawsuit a “perversion” of that law, contending that the Republican lawsuit seeks to monetized the natural resources of Pennsylvania “which is exactly the opposite of what the General Assembly intended when it drafted (an environmental) amendment (to the Pennsylvania Constitution) and what the people of Pennsylvania demanded when they ratified it nearly 50 years ago.”
The DRBC instituted a temporary moratorium on hydraulic fracking about 10 years ago. Two weeks ago the commission voted to make it permanent.
“And it should stand because the process of hydraulic fracturing to extract natural gas from deep in the ground poses a real risk to the water supply, specifically to the headwaters and ultimately the Delaware River itself,” said Santarsiero. “It poses a risk to surface waters from spillage. It poses a risk to groundwater and the aquifers through the drilling and ultimately the potential for drilling fluids to escape from the well and into the aquifer. And therefore it poses a risk to the drinking water for the 13 million people who rely on both the river and the basin for their source of drinking water.”
The suit is being filed by 15 members of the Senate Democratic Caucus, including Amanda Cappelletti (D-Montgomery, Delaware) and Tim Kearney (D- Delaware) who joined Santarsiero at the press conference.
“The Delaware River is a shared amenity. I don’t care if you’re a shad fisherman, an inner-tuber, a sailor or a kayaker, the Delaware River is a beautiful amenity that we all share,” said Kearney . “Fracking provides income and money for a few, but the affect it has is on the many. I’m happy to stand here with my colleagues and support this and to fight against this lawsuit.”
“Clean drinking water is a Constitutional right here in Pennsylvania and it’s imperative to our health and our survival as a species,” said Cappelletti. “The Delaware River Basin provides drinking water to 13.3 million people. We need to join the DRBC to maintain the safety of the water and legislators who are threatening that mission should be ashamed at their fiddling veiled attempt at a power grab.
“The citizens of Pennsylvania, New York, New Jersey and Delaware have a right to keeping this water - their drinking water - clean. I support these efforts to dismiss this case and I join my colleagues because this is the right thing to do - to protect the River and the environment, our access to clean drinking water," continued Cappelletti. "We cannot deny people this access as elected officials because we are entrusted in our jobs to keep them safe. Protecting this water is keeping them safe.
“I am asking my colleagues who have filed this lawsuit to think again. Please don’t harm the public health of this Commonwealth, New York, New Jersey and Delaware," saidCappelletti. "It’s imperative we keep the Delaware River Basin clean.”
According to Steve Miano, of the Philadelphia-based law firm of Hangley Aronchick, who is representing the Democratic Caucus in its lawsuit, the Republican Caucus argues in its lawsuit that the DRBC has no authority to enact the ban. Milano said they also argue that if they do have that authority, it constitutes a taking under the US Constitution and therefore, because money is going to be lost as a result of not being able to frack, that the DRBC ought to pay money for that taking.
“They are taking the environmental rights amendment to the Constitution and turning it on its head because they are claiming, amazingly, that there is a duty of individual state senators, in their case, to monetize and make sure that the resources of the state are monetized, and, as we call it, ‘exploited,’ in our brief.”
According to Miano, the Caucus argues in its suit that the Republican Senators do not have standing under the Constitution to bring the claims. “They claim, as individual senators, they have rights to make these claims, but case law and statutes are very clear that they don’t have standing to bring the case. The same group tried to intervene in another case about fracking and there the district court ruled that they did not have standing. On appeal, the senators withdrew their case.
“Substantively, we don’t believe the Republican Senators or Damascus Township have any claims of taking,” added Miano. “The way the law looks at taking is very individualized and has to be facts dependent. What the Republican Senators are asking the courts to do is declare the whole rubric is a taking. In order to win on a takings case you have to show you’ve been impaired in a very specific way. We don’t believe they have any ability to show that.
“Finally they claim that somehow they DRBC is usurping their power to legislate in Pennsylvania, taking away the sovereignty of the state. That does not make sense as an argument,” said Miano. “All the states, as part of the compact, voted for the fracking ban so we’re not quite sure how the DRBC is usurping the power of the states.”
Five million Pennsylvanians across 17 counties reside in the Basin, which includes Bucks, Delaware, Montgomery, Chester and Philadelphia counties. The Delaware River Basin spans 6,471 square miles in the Commonwealth, across 522 municipalities.
The Democratic Caucus members who have signed onto the lawsuit are Senators Steve Santarsiero (D-Bucks), Carolyn Comitta (D-Chester), Amanda Cappelletti (D-Montgomery, Delaware), Maria Collett (D-Montgomery, Bucks), Wayne Fontana (D- Allegheny), Art Haywood (D-Montgomery, Philadelphia), Vince Hughes (D-Philadelphia), John Kane (D-Chester, Delaware), Tim Kearney (D-Delaware), Katie Muth (D-Berks, Chester, Montgomery), John Sabatina (D-Philadelphia), Nikil Saval (D-Philadelphia), Judy Schwank (D-Berks), Sharif Street (D-Philadelphia), Tina Tartaglione (D-Philadelphia) and Anthony Williams (D-Philadelphia).