Finally, at long last, the 3rd Circuit Court of Appeals has ruled and it was a clear victory for the good guys and a major defeat for the arrogant DRBC.
When Federal District Court Judge Mariani dismissed the Wayne Land and Mineral Group’s argument that a well pad is not a water project back in March of last year, I noted the following:
The DRBC argued for dismissal on the astounding theory it hadn’t taken any real action to stop drilling. The judge soundly rejected that bizarre theory and used 90% of a 44 page opinion doing so. He then moved the case directly to the Court of Appeals by dismissing the case on language that had yet to be debated, rocketing the case forward for a real decision by the court. No one reading the opinion (please do) can come to any conclusion but that judge rejected DRBC reasoning and kicked the case upstairs.
Well, the 3rd Circuit has now spoken (highlighted copy of opinion here). It has not only rejected every major DRBC argument, but also told Judge Mariani it doesn’t buy his conclusion a “project” is anything that uses water. It’s told him the DRBC Compact is a contract and the term “project” is ambiguous and must be interpreted in light of the contract drafters’ intent. Moreover, it has reminded the judge “that States do not easily cede their sovereign powers, including their control over waters within their own territories,” to the DRBC.
The court also instructed Judge Mariani to get on with it and examine the evidence. This is a huge victory for common sense and reason, both of which lead inevitably to the conclusion a well pad is not a project the DRBC can regulate, even if it does have authority to regulate water withdrawals and discharges.