Yaw v. Del. River Basin Comm'n

49 F.4th 302

Gene YAW, Senator; Lisa Baker, Senator; The Pennsylvania Senate Republican Caucus, in their Official Legislative Capacities and as Trustees of the Natural Resources of the Commonwealth of Pennsylvania; Damascus Township, in its Official and as Trustee of the Natural Resources of the Commonwealth of Pennsylvania; Dyberry Township; Wayne County; Carbon County

v.The DELAWARE RIVER BASIN COMMISSION

Delaware Riverkeeper Network; Maya K. Van Rossum; Senator Steven Santarsiero; Senator Carolyn Comitta; Senator Amanda Cappelletti; Senator Maria Collett; Senator Wayne Fontana; Senator Art Haywood; Senator Vince Hughes; Senator John Kane; Senator Tim Kearney; Senator Katie Muth; Senator John Sabatina; Senator Nikil Saval; Senator Judy Schwank; Senator Sharif Street; Senator Tina Tartaglione; Senator Anthony Williams ; Bucks County ; Montgomery County (Intervenors in District Court)

Gene Yaw, Senator; Lisa Baker, Senator, The Pennsylvania Senate Republican Caucus, In their Official Legislative Capacities and as Trustees of the natural resources of the Commonwealth of Pennsylvania; Damascus Township, In its Official Capacity and as Trustee of the Natural Resources of the Commonwealth of Pennsylvania; Dyberry Township; Wayne County Appellants

No. 21-2315

United States Court of Appeals, Third Circuit.

Argued: March 31, 2022

Filed: September 16, 2022

Shohin H. Vance [ARGUED], Matthew H. Haverstick, Joshua J. Voss, Samantha G. Zimmer, Kleinbard, Three Logan Square, 1717 Arch Street, 5th Floor, Philadelphia, PA 19103, Jeffrey S. Treat, 926 Court Street, Honesdale, PA 18431, Counsel for Appellants

John S. Stapleton, LeVan Stapleton Segal Cochran, 601 Route 73 North, Four Greentree Centre, Suite 303, Marlton, NJ 08053, Kenneth J. Warren [ARGUED], Warren Environmental Counsel, 975 Mill Road, Millridge Manor House Suite A, Bryn Mawr, PA 19010, Counsel for Appellee Delaware River Basin Commission

Joseph J. Khan, Bucks County Law Department, 55 East Court Street, 5th Floor, Doylestown, PA 18901, Counsel for Intervenor County of Bucks

Kacy C. Manahan [ARGUED], Delaware Riverkeeper Network, 925 Canal Street, Suite 3701, Bristol, PA 19007, Counsel for Intervenors Delaware Riverkeeper Network and Maya K. Van Rossum

Robert A. Wiygul [ARGUED], Peter V. Keays, Steven T. Miano, Hangley Aronchick Segal Pudlin & Schiller, One Logan Square, 18th & Cherry Streets, 27th Floor, Philadelphia, PA 19103, Counsel for Intervenor Senator Steven Santarsiero, et al

Paul J. Cohen, II, Clean Air Council, 135 South 19th Street, Suite 300, Philadelphia, PA 19103, Jessica R. O'Neill, PennFuture, 1429 Walnut Street, Suite 400, Philadelphia, PA 19102, Counsel for Amicus Curiae

Before: RESTREPO, ROTH, and FUENTES, Circuit Judges

OPINION OF THE COURT

FUENTES, Circuit Judge.

In February 2021, the Delaware River Basin Commission banned high-volume hydraulic fracturing (commonly known as "fracking") within the Delaware River Basin. The ban reflected the Commission's determination that fracking "poses significant, immediate and long-term risks to the development, conservation, utilization, management, and preservation of the [Basin's] water resources."¹ The ban also codified what had been a "de facto moratorium" on natural gas extraction in the Basin since 2010.²

Plaintiffs-Appellants—two Pennsylvania state senators, the Pennsylvania Senate Republican Caucus, and several Pennsylvania municipalities—filed this lawsuit challenging the ban. Among other things, they allege that, in enacting the ban, the Commission exceeded its authority under the Delaware River Basin Compact, 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. The District Court did not reach the merits of these claims because it found that Plaintiffs-Appellants lack standing to pursue them in federal court.

Although Plaintiffs-Appellants advance several arguments for why they have standing to challenge the ban, none of them have alleged the kinds of injuries that Article III demands. In our view, the state senators and the Senate Republican Caucus lack standing because the legislative injuries they allege affect the state legislature as a whole, and under well-established Supreme Court caselaw, "individual members lack standing to assert the institutional interests of a legislature."³ The municipalities lack standing because the economic injuries they allege are "conjectural" and "hypothetical" rather than "actual and imminent."⁴ And none of the Plaintiffs-Appellants have standing as trustees of Pennsylvania's public natural resources under the Environmental Rights Amendment to the Pennsylvania Constitution because the Commission's ban on fracking has not cognizably harmed the trust.

Our holding today is narrow. The fact that the plaintiffs in this case lack standing to challenge the ban on fracking does not mean that it will go unchallenged. Indeed, we have already found that at least one party has Article III standing to challenge the ban in federal court.⁵ Plaintiffs-Appellants are also free to seek redress through other means. They can lobby the Commission to reverse course based on their policy concerns. They can try to amend the Delaware River Basin Compact through concurrent legislation of the member states. Or, they can persuade a party with standing to assert the institutional injuries they allege to bring a version of this lawsuit. What Plaintiffs-Appellants cannot do is seek redress in federal court for broad institutional injuries about which they have no standing to complain.

Because Plaintiffs-Appellants lack Article III standing to pursue their claims, we will affirm the order of the District Court.

I.⁶

A.

The Delaware River Basin (the "Basin") is the drainage basin of the Delaware River. It consists of large swaths of land in Pennsylvania, Delaware, New Jersey, and New York. In 1961, these four states and the federal government entered into the Delaware River Basin Compact (the "Compact"), an interstate compact aimed at facilitating a unified approach to the "planning, conservation, utilization, development, management and control of the [Basin's] water resources."⁷ The Compact created the Delaware River Basin Commission (the "Commission"), a "body politic and corporate" consisting of the governors of the four member states (or their alternates) and a federal representative appointed by the President of the United States.⁸ The Commission has a variety of powers, including the power to: establish standards of "planning, design and operation of all projects and facilities in the basin which affect its water resources"; plan, construct, and complete any projects determined to be "necessary, convenient or useful" to the purposes of the Compact; and conduct research on water resources and their conservation.⁹ The Commission also has the power to review private projects in the Basin for approval: under Section 3.8 of the Compact, "[n]o project having a substantial effect on the water resources of the basin shall ... be undertaken by any person, corporation or governmental authority unless it shall have been first submitted to and approved by the [C]ommission."¹⁰

In 2010, relying on its power of review, the Commission instituted a "de facto moratorium" on natural gas extraction in the Basin.¹¹ The moratorium remained in place until February 25, 2021, at which time the Commission voted to adopt a regulation formally banning oil and gas extraction through high-volume hydraulic fracturing within the Basin. The regulation provides: "High volume hydraulic fracturing in hydrocarbon bearing rock formations is prohibited within the Delaware River Basin."¹² The regulation defines "hydraulic fracturing" as:

a technique used to stimulate the production of oil and natural gas from a well by injecting fracturing fluids down the wellbore under pressure to create and maintain induced fractures in the hydrocarbon-bearing rock of the target geologic formation.¹³

Hydraulic fracturing is considered "high volume" when it uses "a combined total of 300,000 or more gallons of water during all stages in a well completion."¹⁴ The ban reflected the Commission's determination that fracking "poses significant, immediate and long-term risks to the development, conservation, utilization, management, and preservation of the water resources of the Delaware River Basin and to Special Protection Waters of the Basin."¹⁵ The Commission further found that:

Controlling future pollution by prohibiting such activity in the Basin is required to effectuate the [Commission's] Comprehensive Plan, avoid injury to the waters of the Basin as contemplated by the Comprehensive Plan and protect the public health and preserve the waters of the Basin for uses in accordance with the Comprehensive Plan.¹⁶

Outside of the Basin, fracking is big business. This is especially true in Pennsylvania, thanks in part to the Marcellus Shale Formation, a "geological configuration housing significant natural gas reserves."¹⁷ Between 2010 and 2018, "natural gas producers ... paid approximately $10 billion in royalties directly to Pennsylvania landowners."¹⁸

B.

Plaintiffs-Appellants are Pennsylvania State Senators Gene Yaw and Lisa Baker; the Pennsylvania Senate Republican Caucus; and several Pennsylvania towns and counties within the Delaware River Basin: Wayne County, Damascus Township, and Dyberry Township.¹⁹ In early 2021, Plaintiffs-Appellants challenged the ban on fracking by suing the Commission in federal court. Several additional parties then intervened as defendants, including: the Delaware Riverkeeper Network and Maya K. van Rossum, its Executive Director; a collection of Democratic Pennsylvania State Senators; and Bucks and Montgomery Counties. In an Amended Complaint filed in March 2021, Plaintiffs-Appellants allege that the ban: (1) exceeded the Commission's authority under the Compact; (2) violated the Takings...