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Pennsylvania Republicans fight for standing to challenge fracking regulations

Despite being denied several times to fight the Delaware River Basin Commission in court, GOP legislators took another swing Thursday to show the Third Circuit they have standing to fight the fracking regulations.

PHILADELPHIA (CN) — Pennsylvania Republican legislators argued at a federal appeals court Thursday that they have standing to sue the Delaware River Basin Commission, which allegedly stepped outside its authority in issuing fracking regulations.

Pennsylvania Republican Senators Gene Yaw and Lisa Baker, along with the state Republican Caucus, sued the commission last January after it enacted regulations that would prohibit high-volume hydraulic fracturing in over 6,000 square miles of Pennsylvania’s Basin territory. The lawmakers argued the commission was stepping on their legislative toes.

In its decision to prohibit fracking the commission cited that it could adversely impair groundwater and drinking water that 13 million residents of the Basin states rely on.

Pennsylvania, New Jersey, Delaware and New York formed the Delaware River Basin Compact, or DRBC, in 1961 in an effort to have authority to manage the water resources of the Basin. The governor of each state, along with a federal government representative, make up the commission for the compact.

A federal judge dismissed the legislatures last June, finding that they had no standing to bring these claims because they have not been injured by the new fracking regulation.

Before the three-judge Third Circuit panel Thursday, attorney for the plaintiffs Shohin Vance attempted to assure the judges that his clients do have standing. 

U.S. Circuit Judge Luis Felipe Restrepo appeared unconvinced, noting just because the legislatures are upset they cannot frack, does not mean they have standing.

“They don’t like that they’ve been stopped from fracking,” said Restrepo. “You’re looking for a carve-out for your clients. The entire legislature agreed to this compact at some point.”

Vance, a Kleinbard attorney, pushed back.

“It’s not that we don’t agree with the compact,” said Vance.

Restrepo interrupted.

“Well, you don’t, because you want an exception,” said Restrepo, an Obama appointee. 

Restrepo went on, questioning how far this could go.

“Legislator A wants to start fracking and legislator B wants to protect the environment, can they both go to court?” asked Restrepo.

U.S. Circuit Judge Julio Fuentes chimed in.

“Does that mean that individual legislators can bring a claim on behalf of the entire legislative body?” asked Fuentes, a Clinton appointee.

Representing the commission, Kenneth Warren acknowledged the panel’s concerns, saying that the individual legislatures have no standing to sue the commission since they have not suffered any injury.

“The bottom line for standing is: Who is the right plaintiff?” said Warren. “And an individual who has not been singled out in any way, and who has been treated like every other legislator, has no standing to bring a case.”

This is not the legislators’ first attempt to take the commission to court; they have tried twice to intervene in a similar litigation, Wayne Land and Mineral Group, LLC v. Delaware River Basin Commission, which remains pending in Pennsylvania Federal Court. They have been dismissed both times for lack of standing.

Yaw, who represents the 23rd District of Pennsylvania, spoke out against the new regulations at the time.

“The DRBC ban is not just an assault on a highly regulated industry that employs thousands of Pennsylvanians, but it’s another example of neighboring state’s dictating our energy policy,” Yaw said in a statement last year. “The Commission is using New York’s failed policies to institute a ban on development.”

Neither Vance nor Warren immediately responded to email seeking comment.

U.S. Circuit Judge Jane Roth, a George H.W. Bush appointee, rounded out the panel.

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