The Foundation Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(By Joseph Reinhart, Sean McGovern, Matthew Wood and Gina Falaschi)
On June 25, 2022, the Pennsylvania Department of Environmental Protection (PADEP) published General Permit WMGR163 (Permit) in the Pennsylvania Bulletin, 52 Pa. Bull. 3632 (June 25, 2022). PADEP issued the Permit following a 60-day comment period that closed on March 15, 2022. As issued, the Permit authorizes the short-term processing, transfer, and beneficial use of oil and gas liquid waste to hydraulically fracture or otherwise develop an oil or gas well under the authority of the Solid Waste Management Act, 35 Pa. Stat. §§ 6018.101– .1003, and the Municipal Waste Planning, Recycling and Waste Reduction Act, 53 Pa. Stat. §§ 4000.101–.1904. The Permit covers facilities that process and beneficially reuse oil and gas liquid waste for no more than 180 consecutive days at any one time.
Any company interested in using the Permit must register its authorized activities with PADEP. 25 Pa. Code § 287.643. In addition, PADEP is prohibited from requiring an applicant to obtain a determination of applicability from the agency prior to the issuance of the final permit for the land application of material. See id. § 287.641(c), (d). The Permit is applicable to the same oil and gas facilities eligible for coverage under General Permit WMGR123 (“Processing and Beneficial Use of Oil and Gas Liquid Waste”), but with fewer conditions. Key provisions in the Permit include:
- An authorized facility may process and transfer oil and gas liquid waste for no more than 180 consecutive days during the Permit’s two-year coverage period and a permittee can only operate for a maximum of one year during that period. A permittee’s coverage automatically expires one year from the date waste is first received or processed, or two years from date of permit issuance, whichever is less.
- Under the Permit, oil and gas liquid waste is not subject to concentration limits or chemical testing in order to be stored in an impoundment (unlike General Permit WMGR123).
- The applicable facility must meet the siting requirements set forth in the Permit (e.g., it must not be located within a 100-year floodplain or within certain distances of exceptional value wetlands, occupied dwellings, or property lines, subject to certain exceptions).
- A permittee must develop and make available at the facility a preparedness, prevention, and contingency plan that is consistent with applicable PADEP guidance.
The following key terms and provisions were revised based on public comments:
- The duration of the Permit’s coverage was extended from one year to two years, with the maximum operational timeframe of one year.
- The definition of “operate” was revised to clarify that the operational period does not commence prior to oil and gas liquid waste being received or processed at the permitted location.
- Condition C.1 in the draft version of the Permit, which stipulated no more than 100,000 gallons of oil and liquid waste could be stored on-site, was eliminated.
- Former Condition C.26 (now Condition C.25) was revised to clarify that permittees are not authorized to store oil and gas liquid waste in impoundments. The condition was also revised to allow permittees to demonstrate they are exempt from emission permits for open-top storage tanks or other emissions sources in accordance with applicable regulations.
- Condition F.1 was revised to clarify that a renewal request must be submitted at least 180 days in advance of the Permit expiration date and include a certified statement that information contained in the original Permit application has not changed since Permit issuance.
- Condition F.3 was revised to clarify that a permittee may apply for coverage at a previously covered site, but a new Permit cannot be issued until the permittee successfully completes closure and post-closure activities in accordance with Condition C.4 of the Permit.
The Permit became effective June 25, 2022, and expires June 25, 2032.
PADEP Updates Guidance for Handling Radioactive Waste to Address Unconventional Oil and Gas Operations and Publishes Radioactive Materials Disposal Data
On June 11, 2022, the Pennsylvania Department of Environmental Protection (PADEP) published a substantive revision to its technical guidance document (TGD) Radioactivity Monitoring at Solid Waste Processing and Disposal Facilities (Guidance), TGD No. 250-3100-001 (June 11, 2022), in the Pennsylvania Bulletin, 52 Pa. Bull. 3374 (June 11, 2022). PADEP updated the Guidance, which was immediately effective, to assist unconventional oil and gas operators in complying with the obligation under 25 Pa. Code § 78a.58(d) to prepare an action plan specifying procedures for monitoring for and responding to radioactive material produced by the treatment processes (and other procedures). The Guidance does not cover waste from conventional oil and gas operations.
The Guidance applies to all solid waste processing or disposal facilities, including underground injection control wells, as defined in the Guidance, and well sites where fluids or drill cuttings generated by the development, drilling, stimulation, operation, or plugging of an oil or gas well are processed on-site. Facilities that are not required to monitor radiation, but do so voluntarily, are also subject to the Guidance.
PADEP originally published a draft version of the Guidance in the Pennsylvania Bulletin in October 2019. See 49 Pa. Bull. 6197 (Oct. 19, 2019). The final Guidance follows PADEP’s July 2021 announcement that all Pennsylvania landfills, including those accepting unconventional oil and gas waste, would be required to conduct quarterly testing of leachate for radiological contamination prior to the liquid being treated on-site or being sent to an off-site wastewater treatment facility. See Press Release, PADEP, “Wolf Administration to Move Forward with Radiological Testing of Leachate at Landfills” (July 26, 2021).
In a September 30, 2022, meeting with the Low-Level Waste Radioactive Advisory Committee, PADEP presented its most recent data summarizing low-level radioactive waste (LLRW) disposal among the Appalachian Compact states (Pennsylvania, West Virginia, Delaware, and Maryland). Among the data presented, PADEP noted that in 2021 oil and gas operators sent approximately 236,000 cubic feet of technologically enhanced naturally occurring radioactive material (TENORM) waste generated during operations for disposal to out-of-state LLRW facilities. According to PADEP, shale gas operators disposed of a total of 811,070 cubic feet of TENORM waste between 2016 and 2021, most of which was sent to LLRW disposal facilities in Texas and Utah. See PowerPoint Presentation, PADEP, “Appalachian Compact: Low Level Radioactive Waste (LLRW) Disposal Data—Calendar Year 2021” (Sept. 30, 2022). PADEP is also currently reviewing its regulations allowing on-site disposal of radioactive and nonradioactive waste associated with well plugging activities, a response to the increased scale of the well plugging that will occur pursuant to the federal Infrastructure Investment and Jobs Act’s conventional well plugging program. See Meeting Minutes, Oil & Gas Technical Advisory Bd. (Apr. 25, 2022).
Bill Setting Pennsylvania’s Conventional Oil and Gas Bonding Levels Becomes Law
On July 19, 2022, House Bill 2644, 2022 Pa. Legis. Serv. Act 2022-96 (Act 96), became law, without Pennsylvania Governor Tom Wolf’s signature. The new law keeps Pennsylvania’s oil and gas well bonding amounts at the current levels of $2,500 per conventional well and $25,000 for a blanket bond for multiple conventional wells. The blanket bond amount will increase by $1,000 for every additional conventional well drilled six months after July 19, 2022, not to exceed $100,000. However, the Pennsylvania Department of Environmental Protection (PADEP) will waive the $1,000 increase for a new conventional well if the operator has plugged an orphan well at the operator’s own expense. Other than the $1,000 increase for blanket bonds, Act 96 precludes PADEP and the Environmental Quality Board (EQB) from raising bonding amounts for 10 years from the effective date. During this time, only the general assembly has such authority. Act 96 does not place a similar 10-year protection period on the adjustment of unconventional well bond amounts, allowing the EQB to adjust amounts every two years to reflect PADEP’s projected well plugging costs. The EQB has been considering two petitions: one to increase well bonding amounts for conventional wells to $38,000 per well and another to increase unconventional well bonding amounts to $83,000 per well. Act 96’s enactment effectively prevents the petitioned increase for conventional wells. See Vol. XXXVIII, No. 4 (2021) of this Newsletter.
In a formal statement published in the July 30, 2022, Pennsylvania Bulletin, Governor Wolf said he allowed Act 96 to become law, but had several concerns with the legislation, including: (1) the directive that federal Infrastructure Investment and Jobs Act (IIJA), Pub. L. No. 117-58, 135 Stat. 429 (2021), funds be deposited into the commonwealth’s orphan well plugging fund, in apparent contravention of the IIJA’s framework for administering funds; (2) that grant amounts are tied to well depths and not actual plugging costs; (3) the elimination of PADEP’s authority to impose federally mandated requirements on recipients receiving plugging grants; and (4) the withdrawal of the EQB’s authority to establish bonding amounts for conventional operations. See 52 Pa. Bull. 4229 (July 30, 2022).
Due to these concerns, Governor Wolf stated that PADEP is reviewing existing processes and procedures and will provide evaluations and recommendations on the following by September 1, 2022:
- Evaluation of the conventional industry’s recent record of compliance with reporting requirements and performance requirements under existing law.
- Evaluation of using existing authority, including increased exercise of civil penalty authority and forfeiting conventional oil and gas well bonds and requiring submission of replacement bonds, as methods to deter and motivate conventional operators to address abandoned wells and violations of the applicable law.
- Recommendations for increased scrutiny of conventional oil and gas operators’ requests for regulatory inactive status approval and permit transfers, because these steps are often precursors to improper abandonment of wells.
- Evaluation of using existing criminal provisions related to conventional oil and gas operations as a means of deterring and motivating conventional operators to address abandoned wells and violations of the applicable law.
- Recommendations for regulatory reform to comprehensively regulate conventional drilling according to modern best practices and industry standards.
Id. at 4230.
Act 96 also requires PADEP to create a new initiative to provide grants to well plugging companies to maximize the volume of orphan wells being plugged. Grants of $10,000 would be awarded for plugging wells less than 3,000 feet deep, with grants of $20,000 awarded for plugging wells more than 3,000 feet deep. Further, Act 96 exempts conventional wells drilled prior to April 1985 from bonding requirements. PADEP estimates a majority of the more than 110,000 active conventional oil and gas wells in Pennsylvania were drilled before April 1985.
Opponents of Act 96 claim that its passage potentially risks Pennsylvania’s receipt of federal funding from the IIJA’s conventional oil and gas well plugging program to plug abandoned and orphan oil and gas wells. Sierra Club, for example, which is one of the entities that filed a petition to increase conventional well bond amounts in Pennsylvania, claims that Pennsylvania may have to return already-allocated funding or may miss out on future funding because Act 96 precludes PADEP from following federal requirements for use of the funds. See Press Release, Sierra Club, “Pennsylvania Legislation Will Exacerbate Massive Oil and Gas Well Backlog and Mismanagement of Federal Funds” (July 19, 2022). In a statement to the Pittsburgh Post-Gazette, Governor Wolf’s Press Secretary Elizabeth Rementer said that “[t]he administration is currently exploring the next steps to ensure the industry is held accountable in order to protect the environment and that we don’t lose out on millions of dollars in federal funding for well plugging.” Laura Legere, “As Pa. Faces ‘Looming Crisis’ of New Abandoned Wells, State Law Will Freeze Well Bonding Rates for a Decade,” Pittsburgh Post-Gazette (July 19, 2022).
Allegheny County Bans Future Oil and Gas Development of County Park Land
On July 19, 2022, the Allegheny County Council voted 12-3 to override County Executive Rich Fitzgerald’s veto on Bill No. 12162-22. The bill, which the Council originally passed on July 5, and Fitzgerald vetoed on July 12, bans new natural gas drilling and other industrial activity, including hydraulic fracturing, mining, and commercial forestry, within and underneath county-owned parks. The ban, which does not apply to existing leases, but does prevent expansion of existing operations at Deer Lakes Park, took effect immediately.
In his veto message, Fitzgerald described his opposition to the measure, stating it prevents the County from negotiating environmental protections for any future oil and gas or other industrial activity in the vicinity of county park land. See Fitzgerald Veto Message (July 12, 2022). Specifically, Fitzgerald said passage of the bill prevents
- baseline water testing before, during, and after extraction activities;
- air monitoring requirements during natural gas drilling and other industrial activity; and
- limiting hours of operation and setting noise, dust, trucking, and light pollution limits from natural gas drilling and other industrial activity.
Id. Moreover, Fitzgerald said future legislation authorizing natural gas extraction under county land would act to repeal the ban. Id. Fitzgerald supported a separate bill, Bill No. 12357-22, that would have prevented surface drilling within county parks but allowed leasing of subsurface rights deeper than 7,000 feet. It would have also mandated that the County include environmental protections, including bad actor provisions, in any future lease agreements. Despite his opposition and subsequent veto prior to Bill No. 12162-22’s passage, Fitzgerald said he had no plans to lease county park land for natural gas operations. Id. On October 18, 2022, the Pennsylvania Senate Environmental Resources and Energy Committee reported out Senate Bill 1331, which would deny revenue from Act 13 of 2012 drilling impact fees to counties that ban fracking on county-owned land. The bill now moves to the full Senate for action.
Study Finds Spreading of Conventional Oil and Gas Wastewater Poses Danger to Environment and Human Health
On May 26, 2022, Penn State announced that a health study commissioned by the Pennsylvania Department of Environmental Protection (PADEP) to examine the environmental and human health impacts of spreading conventional oil and gas produced water (OGPW) as a dust suppressant concluded the practice is ineffective for that purpose and poses dangers to the environment and human health. See News Release, Tim Schley & Ashley J. WennersHerron, Penn State Coll. of Eng’g, “Oil and Gas Brine Control Dust ‘No Better’ than Rainwater, Researchers Find” (May 26, 2022). The announcement coincided with PADEP’s finalization of the study. See William Burgos et al., Penn State Univ., “Evaluation of Environmental Impacts from Dust Suppressants Used on Gravel Roads” (May 26, 2022) (Study).
Historically, road spreading OGPW was authorized in Pennsylvania, but PADEP placed a moratorium on the practice in response to a 2018 legal challenge and subsequent decision by the Environmental Hearing Board. See Lawson v. PADEP, EHB Docket No. 2017-051-B (May 17, 2018). In accordance with Pennsylvania solid waste laws, using OGPW on roads for dust control could continue if conventional operators demonstrated the chemical makeup of the wastewater was similar to commercially available dust suppressants.
The Study assessed the effectiveness and environmental impacts associated with various dust suppressants used on dirt and gravel roadways, which included testing synthetic rainwater, calcium chloride (CaCl2) brine, soybean oil, and OGPW from three conventional oil and gas operations.
PADEP presented the study results at the July 25, 2022, Oil and Gas Technical Advisory Board meeting. In sum, the study found that OGPW is no more effective than rainwater as a dust suppressant on roadways, likely due in part to OGPW’s high sodium concentrations, which can affect how OGPW “sticks” to dust particles. Further, the study showed OGPW actually destabilized gravel roadways, which could lead to more dust and increased long-term road maintenance costs. According to the study results, only CaCl2-based brines and soybean oil were effective dust suppressants, with the study’s rainfall-runoff experiments showing that CaCl2-based brines led to the lowest concentration of total suspended solids washed off the roadbeds. Study at 9.
The study also found that runoff from spreading OGPW on unpaved roadways contained concentrations of barium, strontium, lithium, iron, and manganese that exceeded human-health based criteria and levels of radioactive radium that exceeded industrial discharge standards. In addition, most contaminants contained in the applied dust suppressants washed from the roadbed during rain events. However, roadbeds treated with OGPW retained traces of radium, sodium, iron, and manganese after rainfall events and had the highest concentration of combined radium in runoff. Id. at 9–10. The study supports Penn State’s conclusions from a similar peer-reviewed study published in 2021. See Audrey M. Stallworth et al., “Efficacy of Oil and Gas Produced Water as a Dust Suppressant,” 799 Sci. of the Total Env’t 149347 (2021).
On September 20, 2022, PADEP informed the Citizens Advisory Council (CAC) that analysis of brine as a co-product submitted by conventional operators to allow for spreading on roadways for dust control did not meet the state’s residual waste regulations. PADEP is currently updating waste disposal and handling standards for conventional operations and a draft rulemaking is expected to be presented to oil and gas advisory committees following the December 18, 2022, Pennsylvania Grade Crude Development Advisory Council meeting. See Meeting Minutes, CAC (Sept. 20, 2022); PADEP, “October 2022 Report to the Citizens Advisory Council” (Oct. 2022). A report from PADEP detailing, among other things, conventional operators’ compliance with state environmental and regulatory requirements was due to the Governor’s Office on September 1, 2022, but has not been made public as of the time of this report. See 52 Pa. Bull. 4229 (July 30, 2022).
EQB Adopts Regulations Reducing Emissions from Unconventional and Conventional Operations
During its June 14, 2022, meeting, the Pennsylvania Environmental Quality Board (EQB) voted 15-3, with one abstention, to adopt Part I of a revised final regulation reducing volatile organic compound (VOC) and methane emissions from unconventional wells and facilities. See Final-Form Rulemaking Preamble, EQB, “Control of VOC Emissions from Unconventional Oil and Natural Gas Sources” (June 14, 2022). This regulation establishes reasonably available control technology (RACT) requirements for unconventional oil and natural gas sources of VOC emissions. These sources include natural gas-driven continuous bleed pneumatic controllers, natural gas-driven diaphragm pumps, reciprocating compressors, centrifugal compressors, fugitive emissions components, and storage vessels installed at unconventional well sites, gathering and boosting stations, and natural gas processing plants, as well as storage vessels in the natural gas transmission and storage segment. Id. at 1.
A substantially similar rule approved by the EQB in March 2022 did not distinguish between conventional and unconventional emission sources. That rulemaking had advanced to the Pennsylvania House and Senate Environmental Resources and Energy (ERE) Committees and the Independent Regulatory Review Commission (IRRC) for consideration, but the House ERE Committee issued a disapproval letter for the rulemaking on April 26, 2022. Three trade associations also filed a petition for review of the rulemaking in the Commonwealth Court of Pennsylvania. The petition and the House ERE Committee’s disapproval letter alleged that the Pennsylvania Department of Environmental Protection (PADEP) failed to comply with Act 52 of 2016, which requires that any rulemaking concerning conventional oil and gas wells be undertaken separately and independently from those concerning unconventional oil and gas wells or other subjects. As a result, PADEP withdrew the regulation from IRRC consideration on May 4, 2022. See Vol. 39, No. 2 (2022) of this Newsletter.
PADEP revised the regulation to remove provisions regulating conventional wells and facilities and submitted the regulation to the EQB for approval, which it approved during its June 14, 2022, meeting. The House ERE Committee met on July 11, 2022, and approved a letter to the IRRC announcing its opposition to the final EQB regulation on a number of grounds, including that the revised regulation had not gone through public notice and comment. During its July 21, 2022, meeting, the IRRC unanimously voted to approve the regulation. The House ERE Committee met on August 2, 2022, to vote on a concurrent resolution disapproving of the rule, and the resolution was voted out of committee. The House and Senate each had 30 calendar days, or 10 legislative voting days (whichever is later), to adopt the concurrent resolution. Neither body took further action.
On October 12, 2022, the EQB voted 15-3 to approve Part II, a separate rule addressing VOC and methane emissions from conventional wells and facilities. See Final-Omitted Rulemaking Preamble, EQB, “Control of VOC Emissions from Conventional Oil and Natural Gas Sources” (Oct. 12, 2022). PADEP recommended that the EQB adopt Part II as a final-omitted regulation as part of the process to meet the U.S. Environmental Protection Agency’s December 16, 2022, deadline for the state to adopt methane emission controls for oil and gas operations. See Executive Summary, “Control of VOC Emissions from Conventional Oil and Natural Gas Sources—25 Pa. Code Chapter 129” (Oct. 12, 2022). Adoption of Part II as a final-omitted regulation allows for the rulemaking to skip the proposed rulemaking stage and proceed forward without any public comment. Per the Pennsylvania Commonwealth Documents Law, PADEP may use the final-omitted process if starting at the proposed stage for rulemaking is “impracticable, unnecessary, or contrary to the public interest.” 45 Pa. Stat. § 1204(3). In its executive summary of the rulemaking, PADEP justified promulgation of Part II as a final-omitted regulation, stating that “[a] public comment period is also contrary to the public interest because it will delay the implementation of the VOC RACT requirements in this final-omitted rulemaking, resulting in the Commonwealth being unable to satisfy the December 16, 2022, sanction deadline.” Executive Summary at 5. Under the Regulatory Review Act, 71 Pa. Stat. §§ 745.1–.14, the IRRC and the House and Senate still have the opportunity to review the rulemaking. Failure of the state to adopt this rule reportedly may result in the loss of over $500 million in federal highway funding. Executive Summary at 5.
PADEP Officials Hold Workgroup Meetings and Finalize First Bid Packages to Plug Conventional Oil and Gas Wells Using Federal Funds
In response to passage of the Infrastructure Investment and Jobs Act (IIJA), Pub. L. No. 117-58, 135 Stat. 429 (2021), and its conventional well plugging component, the Pennsylvania Department of Environmental Protection (PADEP) invited stakeholders to participate in several workgroup sessions to gather information and assist with PADEP’s development of a new conventional oil and gas well plugging program. See PowerPoint Presentation, PADEP, “Infrastructure Investment and Jobs Act (IIJA) Implementation” (Apr. 28, 2022); Notice, “DEP Inviting Stakeholders to Participate in Workgroups on New Federal Conventional Oil & Gas Well Plugging Program,” PA Env’t Digest (Aug. 4, 2022).
PADEP held seven workgroup sessions between August 23 and September 19, 2022. The sessions were open to the public, other interested parties, and industry. Covered topics included due diligence and documentation of previously undocumented abandoned wells; project prioritization; engineering design, permitting, and monitoring requirements; and handling of waste generated from plugging abandoned wells and reclaiming well sites. See PADEP, “September 2022 Report to the Citizens Advisory Council” (Sept. 2022); PADEP, “October 2022 Report to the Citizens Advisory Council” (Oct. 2022).
Of note, at a September 1, 2022, workgroup meeting, Joe Kelly, PADEP Bureau of Oil and Gas Planning and Program Management, said that any waste generated by the new plugging program will not be exempt from hazardous waste requirements, unlike the same or similar wastes generated from active oil and gas production wells and facilities (as exempted by 40 C.F.R. § 261.4(b)(5)). See David E. Hass, “DEP: Wastes Generated by the New Conventional Oil & Gas Well Plugging Program Will NOT Be Exempt from Hazardous Waste Regulations, Unlike Wastes from Active Wells,” PA Env’t Digest Blog (Sept. 1, 2022). Kelly went on to say that contractors will also have to meet existing spill notification and cleanup requirements and prepare pollution prevention contingency plans to implement spill and leak prevention measures. Id.
The stakeholder input PADEP received during the workgroup meetings will assist the agency in developing Pennsylvania’s IIJA well plugging program, including preparing invitations to quote, requests for bids, and requests for proposals. Following the last workgroup session, PADEP finalized the first group of bid packages to plug 249 conventional oil and gas wells using IIJA funds, which were posted on BidExpress.com for review by potential contractors. See PADEP, “Plugging Contractor Information,” https://www.dep.pa.gov/Business/Energy/ Oil-andGasPrograms/OilandGasMgmt/LegacyWells/Pages/Contractors.aspx.
Waste disposal and handling updates are expected to be presented to the Pennsylvania Grade Crude Development Advisory Council at its scheduled December 18, 2022, meeting. The most recent draft of the waste handling regulations update was posted by PADEP in September 2021. See PADEP, Draft Chapter 78 Conventional Oil and Gas Well Regulations (Aug. 19, 2021).
Third Circuit Finds Plaintiffs Lack Standing to Challenge the DRBC’s Hydraulic Fracturing Ban
On September 16, 2022, the U.S. Court of Appeals for the Third Circuit affirmed a district court ruling that Pennsylvania state legislators and municipalities lacked standing to challenge the Delaware River Basin Commission’s (DRBC) regulation banning hydraulic fracturing for natural gas within the basin. Yaw v. DRBC, 49 F.4th 302 (3d Cir. 2022), aff’g No. 2:21-cv-00119, 2021 WL 2400765 (E.D. Pa. June 11, 2021); see Vol. XXXVIII, No. 3 (2021) of this Newsletter. The court held that the appellants failed to meet the standing requirements of Article III of the U.S. Constitution because: (1) in the case of the state senator appellants, individual members of the state legislature lack standing to assert the interests of the legislature as a whole; and (2) in the case of the municipality appellants, their alleged injuries were “conjectural” or “hypothetical,” as opposed to “actual” or “imminent.” The court also held that none of the appellants had standing as trustees of Pennsylvania’s public natural resources under the Environmental Rights Amendment to the Pennsylvania Constitution because the DRBC’s ban has not cognizably harmed the trust.
The five-member DRBC is governed by a compact between the federal government and four states that draw water from the Delaware River: Pennsylvania, New Jersey, Delaware, and New York, represented by a member of the U.S. Army Corps of Engineers and each state’s governor, respectively. See Delaware River Basin Compact, Pub. L. No. 87-328, 75 Stat. 688. The DRBC has authority to approve, construct, operate, and regulate projects and facilities that use the basin’s water resources. It can also address issues outside the basin if they have a substantial effect on the basin’s water quality and water supply and if the issues conflict with the DRBC’s comprehensive plan. See Cong. Research Serv., “Federal Conservation of the Delaware River” (Mar. 18, 2015).
The Third Circuit’s decision follows the DRBC’s February 2021 vote to ban hydraulic fracturing in the basin, which had been under a de facto moratorium since 2010. In support of the ban, the DRBC found that hydraulic fracturing for extraction of oil and natural gas “poses significant, immediate and long-term risks to the development, conservation, utilization, management, and preservation” of water resources within the basin. Yaw, 49 F.4th at 307. Following the ban, Pennsylvania legislators and municipalities filed suit, arguing that the DRBC overstepped its legal authority. Among other things, they alleged the ban “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.” Id.
Acknowledging that challenges are likely to continue, the court noted that its ruling is narrow. It said that although the legislators and municipalities lack standing, they can attempt to seek redress of the issues by other means, such as requesting that the DRBC reverse the ban, seeking to amend the compact, or persuading a party with standing to assert the institutional injuries. Id.
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