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Posted on: September 22, 2022

Appeals Court Upholds Dismissal of Fracking Ban Challenge

The Delaware River

The U.S. Third Circuit Court of Appeals last week upheld a lower court ruling that dismissed a partisan legal challenge to the ban on fracking in the Delaware River Basin. 

Originally heard in U.S. District Court for the Eastern District of Pennsylvania, the suit brought by the state Senate’s Republican Caucus sought to end the prohibition on the environmentally harmful practice that has been in place in the Delaware River watershed for more than a dozen years. 

District Judge Paul S. Diamond ruled in June 2021, and the appellate panel agreed Friday, that the caucus and its fellow plaintiffs lacked standing to challenge the Delaware River Basin Commission’s ban. 

Bucks County, together with Montgomery County and a delegation of state senators led by Sen. Steve Santarsiero, intervened in the suit last year in support of the Delaware River Basin Commission. 

During Wednesday’s public meeting of the county Board of Commissioners, county Solicitor Joe Khan criticized the plaintiffs’ reasoning in their court challenge, which relied in part on a novel interpretation of the state Constitution’s Environmental Rights Amendment (ERA).

“Their position was that the real way to read that law was to say that the Constitution requires us to liquidate all of our natural resources for cash,” he said. “We thought that was absurd.” 

In its unanimous decision the Third Circuit panel said the argument was a “fundamental misunderstanding” of the ERA, Khan added, “and that it would turn the Constitution upside down if it was accepted.” 

The state Constitution guarantees all Pennsylvanians the right to clean air and pure water, a guarantee that the Delaware River Basin Commission and its co-defendants in the suit contend would be threatened if fracking were allowed in the river basin.  

Known as hydraulic fracturing, fracking is an extractive process by which a mixture of water, sand or gravel and chemicals is forced into rock to remove oil and natural gas. 

“This is a great result on behalf of the people not just of Bucks County, but of the entire four-state region that is protected by the commission,” Khan said. 

Read the court’s full opinion here.

Media Contact: James O'Malley, 215-348-6414, [email protected]

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