Judge dismisses Wayne Land and Mineral Group suit against DRBC over fracking ban

A federal court judge has dismissed a nearly 9-year-old challenge to the Delaware River Basin Commission’s ban on fracking in the Delaware River watershed that was brought by a group of Pennsylvania landowners, ruling that their suit is moot.

The door that might have once been open to submit fracking plans for the DRBC’s review and approval has since been permanently closed given that the commission adopted final regulations in 2021 that ban fracking basin-wide, the judge ruled.

The ban extended to the entire watershed, which covers parts of Delaware, New Jersey, New York and Pennsylvania, but particularly affected Pennsylvania counties that are home to the nation’s largest gas field in the Marcellus Shale formation.

When the landowners, Wayne Land and Mineral Group, first went to court in 2016, the DRBC was still mulling fracking regulations in the watershed. The commission said at the time that it would not consider any applications for wells or drilling until it had adopted final rules governing fracking.

The land group described the DRBC’s position at the time as a “de facto moratorium” that would hurt it financially, according to court records. The then-moratorium paused fracking in the watershed, the process of using high-volume hydraulic fracturing to extract natural gas from underground rock formations.

In its complaint, the landowners group maintained that the DRBC lacked jurisdiction to require a permit for construction of a well pad and fracking-related facilities and that it should be allowed to drill without applying to the DRBC for a permit. The group owns about 180 acres with deposits of natural gas and minerals in Wayne County, Pa., with about 75 acres of that land in the Delaware River Basin, according to court records.

After years of deliberations, the DRBC’s commissioners finally voted four years ago to amend the commission’s Comprehensive Plan and Water Code to prohibit high-volume hydraulic fracturing in the Delaware River Basin as a way to “control future pollution, protect the public health and preserve the waters of the basin,” the commission said at the time.

The ban was hailed by environmental activists as a victory to protect the watershed against a practice that they said could introduce harmful fracking chemicals into the Delaware River water system, disrupt ecosystems, contribute to stormwater runoff and negatively affect communities’ quality of life. Advocates of fracking saw the ban as a governmental overreach and argued it would curb economic benefits and energy exports.

In a related follow-up to the fracking ban, the commission in late 2022 tightened rules for Delaware River water to be exported for fracking and the importation of fracked wastewater.

The ruling  

In the Wayne Land and Mineral Group case, the judge, in essence, ruled that the group’s lawsuit had been overtaken by events given that the DRBC had since adopted a fracking ban.

As the judge, Robert D. Mariani, noted in his Feb. 3, decision, “The fundamental flaw in WLMG’s position is its failure to acknowledge that project review jurisdiction over WLMG’s proposed activities is no longer in existence.” The judge also noted that the DRBC first released proposed fracking regulations in 2010, years before the plaintiffs filed their suit.

Lawyers for the plaintiffs did not respond to emails seeking comment. The DRBC, through a spokeswoman, declined to comment, apart from confirming that the case had been dismissed.

In addition to the DRBC, the suit named the Delaware Riverkeeper Network and the riverkeeper, Maya van Rossum, as defendants.

“It is good to have a final resolution to this case that continues, unabated, the protections from fracking our watershed needs and deserves,” van Rossum said. “DRBC has the authority to ban fracking. Wayne Land and Mineral does not have the right to ignore or otherwise undermine the ban. Our watershed remains protected and this spurious lawsuit no longer hangs over our communities as a sword of Damocles just waiting to unleash the horrors and ravages of fracking on our river, communities or future generations.”

The case had moved up and down through an appeals process. In 2017, a district court judge granted the DRBC’s motion to dismiss the case but a year later an appeals court vacated that order and sent the case back to the lower court for further proceedings.

The DRBC’s work on fracking also survived a separate lawsuit brought by two Pennsylvania Republican state lawmakers who claimed a moratorium the agency imposed on fracking was a regulatory overreach.

The suit was brought by state Senators Gene Yaw and Lisa Baker, who said that a 2009 moratorium imposed by the commission’s then executive director, Carol Collier, amounted to an unconstitutional “taking” of private and public property. That case was dismissed in 2021, with a judge ruling that the senators did not have standing to bring the lawsuit.