Natural Gas NOW
A DRBC power grab, encouraged by radical fractivists and enabled by cowardly leadership, is challenged with a compelling appeal made to the 3rd Circuit.
The Delaware River Basin Commission has made a bid for control over every aspect of life in the watershed. This DRBC power grab is not going down without a fight, though, and it’s coming from aggrieved landowners who know exactly what is at stake. They have a very compelling argument. The matter is now before the 3rd Circuit of the United States Court of Appeals, where one hopes this out-of-control agency, responsible to no one, will finally be forced to operate within the actual authority granted it. If the justices bother to read the history of the DRBC and look at its record — all detailed in the appeal — there can be but one answer; the DRBC power grab itself will be history.
I previously outlined the status of the DRBC lawsuit and why it was important in posts here and here. Readers will recall Scranton Federal District Court Judge Robert Mariani ruled against landowners in a very odd decision on his own motion. He did so without giving the parties any opportunity to argue his points. This was after using roughly 90% of his opinion to trash the DRBC power grab (or, more precisely, the way it has gone about it).
Mariani was obviously unimpressed with the agency’s explanations and, from all appearances, simply opted to kick the case upstairs where it was always going to be resolved anyway. Now, it’s there and the appeal by the Wayne Land and Minerals Group (WLMG) is one extraordinarily compelling challenge to the DRBC power grab.
The appeal methodically lays out the history of the DRBC and how it operated until gas drilling, and especially opposition to such drilling, suddenly changed everything and not for the better. We are, in fact, now in a situation where everything is on the line, a point captured succinctly in this one paragraph from the brief and appendices filed (also find a second set of appendices here and a further addendum here):
The Commission seeks to displace state and local control over the use of land and its asserted jurisdictional hook is water. Pressured and funded by antidevelopment activists, including the intervenors in this case, the Commission seeks to be the ultimate decision maker on what forms of development may proceed in the Basin. While the current victim of this overreach are landowners like WLMG seeking to develop the abundant gas reserves in the Basin, the list of potential, future targets is endless. Private property rights, and State’s rights, are at risk.
Much of the legal argument in the brief necessarily deals with the issue of whether Judge Mariani acted properly in deciding the issue on his own motion without argument on that motion by the parties. All that is beside the point, though. If, as WLMG asserts, Mariani was wrong in doing so the 3rd Circuit can either simply override him and itself decide the case on its merits now or remand the matter back to him, in which case whatever he decides will be appealed back at the 3rd Circuit another day.
The real issue is over what constitutes a “project” the DRBC is entitled to regulate. WLMG, by committing to only using water supplies already regulated by the DRBC (and likewise for any water disposal) cleverly shifted the question to a very simple one; does the DRBC power grab give it any right to regulate gas well pads that, after all, are simply another land use? Common sense and the long consistent history of the DRBC, until Carol Collier took over the reins of the agency to lead into “Never Never Land,” say the answer is a simple “no.”
The WLMG lays it all out, piece by piece, setting the stage with this (emphasis added):
The plain meaning of the Compact, whether the focus is on the definition of “project” or on the Compact as a whole, precludes a finding that the Commission has “project” review jurisdiction over well pads and gas wells. “Projects” are activities and facilities that are undertaken “for” the purpose of managing, developing or using water resources. “Projects” subject to the jurisdiction of the Commission under Section 3.8 of the Compact are, therefore, water resource development and management activities and undertakings, such as dams, reservoirs, flood controls, water treatment plants, water mains and hydroelectric plants. As the term is defined, and used throughout the Compact, “projects” are not industrial, commercial or residential developments that utilize water, even lots of water, in their construction or operation (including natural gas well pads and wells).
Beyond its plain terms, the history and negotiation of the Compact evidence that Congress and the Basin States never intended for the Commission’s “project” review jurisdiction to extend to industrial, commercial and residential uses of land that happen to use water or generate waste water.
In addition, and prior to caving to pressure from anti-industry groups spreading unfounded hysteria over “fracking,” the Commission understood the limited reach of its “project” review jurisdiction. That is why the Commission, since its creation in 1961, has not asserted jurisdiction over office towers, refineries, nuclear power plants, chemical plants, shopping malls, apartment complexes, commercial farms or, until recently, well pads and natural gas wells.
Notwithstanding the compelling nature of this argument, it is in the examples dug out from the archives of DRBC history that WLMG really makes its case. Here, for example, is what one of Carol Collier’s predecessors (Jim Wright, the first Executive Director) had to say a the time the DRBC was organized in 1961:
Some concern has been evidenced that the Commission might be trying to undertake work now properly regarded as the province of existing state agencies. . . .
The framers of the compact were acutely aware of the situation and were forthright in establishing a policy that we must follow in our relations with public agencies with whom we have an identity of interest. Any apprehension that the Commission will be doing any jurisdictional poaching should be allayed by [Section 1.5] of the compact. . . . [Section 1.5] is a clear and direct order and there is no intent to depart from it.
Wright was referring to this language from the Delaware River Compact:
It is the purpose of this signatory parties to preserve and utilize the functions, powers and duties of existing offices and agencies of government to the extent not inconsistent with the compact, and the commission is authorized and directed to utilize and employ such offices and agencies for the purpose of this compact to the fullest extent it finds feasible and advantageous.
Regulation of land use and subjects such as gas drilling, in other words, were a matter for states and localities to address, not the DRBC.
Jim Wright kept his word but, with Carol Collier at the helm, things changed. Jurisdictional poaching became standard practice and the agency caved on gas drilling at the behest of the Delaware Riverkeeper (among others) which had funding from the William Penn Foundation to pursue its radical de-growth agenda. The Riverkeeper organization inserted itself on most of the DRBC committees, developing the coziest of relationships with Collier (also documented here), a relationship that continued even after the Riverkeeper sued the DRBC over gas drilling issues. Collier even managed to convince the DRBC Commissioners there was nothing wrong in itself taking money from the William Penn Foundation to study gas drilling even as the Foundation was indirectly funding the Riverkeeper lawsuit against it (see chart in this story for help in how understanding DRBC corruption).
The WLMG lawsuit against the DRBC is the fruit of this jurisdictional poaching and, one hopes, will serve to curb it. Meanwhile, of course, the Delaware Riverkeeper a/k/a Povertykeeper together with other elitist foundation funded fractivist groups are pursuing a political campaign geared toward a permanent ban on gas drilling by the DRBC, as if it had some authority to enact such a ban. It clearly doesn’t and that’s why it’s resorted to deceptive acts of pretending to be studying the issue forever; thereby effectuating a moratorium that is really a ban by another name. Will they they get away with this brazen power grab? That’s the issue before the 3rd Circuit and it’s all on the line.
Note: Also, read what Jim Willis has to say on this subject over at Marcellus Drilling News. Jim, as is his custom, pulls no punches.