The DRBC has picked a very strange time and even stranger location for hearings on its proposed fracking ban, which is the dirty trick for all time.
Tomorrow, the Delaware River Basin Commission or DRBC will be holding two hearings in Waymart, Pennsylvania on a proposed fracking ban. The hearings will be held, ironically, on the doorstep of the Susquehanna River basin where the same players have allowed natural gas drilling for a decade with “no discernible impacts” on water. Why is DRBC pursuing a fracking ban now? Why has it chosen a location for hearings that highlights the evidence against their proposed ban? The answer to the second question is, sadly, a simple one: gross incompetence compounded with the blindness of those refusing to see.
Many years ago, when my wife, Mary, and I first married, her Fox Terrier, a little dog named Tippy, became part of our new household. He was an extraordinarily crafty fellow and Mary loved to show him off. He was pretty old at the time and only had three good legs but he could still run and thought of himself as the great protector. One morning, when we came out outside, we noticed a skunk in the corner of the yard and Mary decided to test him for my benefit, knowing what he’d do. She said “sic ’em, Tippy” and off he took like a rocket on his three legs, yapping all the way, with an eye on the skunk — to the opposite corner of the yard. Tippy was nobody’s fool.
That’s what the DRBC Commissioners from New York and Pennsylvania doing today; they’re running from the fractivist skunk, scared to death of a small band of malcontents and miscreants and, especially, by the wealthy special interests who have funded these noisemakers and even the DRBC itself. They have chosen politics over consistency, ideology over science and expediency over principle. The whole thing is a sham and they’ve so deliberately run the other direction to avoid looking at the SRBC data, that they’ve not noticed the irony of where they’ve chosen to do two of the hearings—at the front door to their own laboratory, one proving their justification for a fracking ban is completely bogus.
The answer to the second question is a bit more complicated, but not much. The fracking ban is a dirty trick, an attempted end-run around what the DRBC fears will be a loss at the Third Circuit Court of Appeals in the Wayne Land and Mineral Group’s challenge to its authority to regulate gas well pads. No one knows what any court will do, of course, and it’s certainly possible the court could side with the DRBC in the end, but we do know the oral arguments didn’t go especially well for the agency.
Its prim and proper legal counsel (who serves on what is, for all practical purposes, a William Penn Foundation subsidiary along with former DRBC Executive Director Carol Collier) fainted at the critical point in the first set of arguments and had to sit down at the exact same point in the second set of arguments. He knows the DRBC is on weak ground.
He also knows the earlier arguments before the district judge didn’t go well either. Though the agency won a technical victory, that judge’s opinion excoriated the DRBC. Going back to him with instructions from the Third Circuit on how to define DRBC project authority would be no picnic. They could well lose substantial amounts of authority they’ve been claiming over all sorts of projects. Hence, the end run.
The fracking ban is being proposed outside of the DRBC’s project review authority on the highly questionable assumption Article V of its compact (the SRBC has a similar article) provides separate authority to prevent pollution. The DRBC is attempting to legally do, under Article V, what it has been doing all along in evading the issuance of permits via a phony moratorium. The Wayne Land and Mineral Group legal challenge exposed the moratorium as a fraudulent act and forced the DRBC out of its foxhole. That’s why they’ve decided to pursue a ban; to avoid offending the malcontents and their mutual benefactor in the William Penn Foundation.
The end run is unlikely to work, though. There are serious questions of legal authority too complex to go into here but that are, nonetheless, very real. More importantly, the DRBC cannot simply not ignore the SRBC evidence of “no discernible impact” on water resources after thousands of wells hydraulic fractured right next door under the control of an agency governed by the same majority of members. Tippy could run away from the skunk in the opposite direction, but the DRBC will be forced, sooner or later, to acknowledge the facts at its own disposal and confront the skunk that is the William Penn Foundation, the Delaware Riverkeeper and other well-funded malcontents.