A Tale of Two Basins: The Delaware and Susquehanna River Basin Commissions’ Stances on Fracking Beg for Equal Justice

It is said there is no such thing as justice for you, justice for me, or social justice. There’s only justice under the natural law, which can be understood as equal justice, although that term has been perverted by lawyers trying to turn our equal justice statutes inside out in ugly episodes of projection. Looking at equal justice as it was meant to be, though, there are myriad examples of situations crying out it.

One of those involves the Delaware River Basin Commission (DRBC) ban on fracking as contrasted with the position of its sister agency, the Susquehanna River Basin Commission (SRBC). It is a case of rank politicization of the law by the former. It’s an outrage that demands correction and, as an experiment, I decided to ask Grok to opine on it and see what the AI program recommended.

Here is what I got (emphasis added):

The Delaware River Basin Commission (DRBC) and the Susquehanna River Basin Commission (SRBC) oversee water resource management in neighboring watersheds, with overlapping member states—Pennsylvania, New York, and the federal government via the U.S. Army Corps of Engineers, plus New Jersey for the DRBC and Maryland for the SRBC. Despite their shared governance and similar mandates, the two commissions have adopted starkly divergent positions on high-volume hydraulic fracturing (fracking), raising concerns about equal justice, scientific consistency, and the political motivations behind the DRBC’s decisions.

The DRBC, responsible for a 13,539-square-mile watershed serving over 13 million people, has maintained a stringent anti-fracking stance. Since 2010, it imposed a de facto moratorium on fracking, which was formalized into a permanent ban in February 2021.

The DRBC justifies this by citing “significant, immediate, and long-term risks” to water resources, particularly its Special Protection Waters, based on studies like a 2015 New York Department of Environmental Conservation report and a 2016 EPA study noting potential impacts on drinking water under certain conditions.

The ban prohibits fracking in northeastern Pennsylvania and southern New York, areas overlapping the Marcellus Shale, effectively halting development in Wayne and Pike counties.

In contrast, the SRBC, managing a watershed with extensive Marcellus Shale development, has overseen fracking for over a decade without imposing similar restrictions. The SRBC’s continuous monitoring, including its Remote Water Quality Monitoring Network, has found no “discernible impacts” on water quality or quantity, despite over 5,800 wells drilled by 2017. A 2015 SRBC report showed water quality scores at most monitoring stations as “good” or “excellent,” even in areas with active drilling.

The SRBC regulates water withdrawals for fracking, with strict low-flow protections, and notes that fracking accounts for only 12% of the basin’s water consumption, much of it recycled. This data suggests fracking can be managed without significant environmental harm. The DRBC’s ban, juxtaposed against the SRBC’s permissive approach, raises equal justice concerns, particularly for landowners in Wayne and Pike counties.

These property owners, unlike their neighbors in the Susquehanna basin, are denied economic opportunities from leasing mineral rights. For example, Wayne County farms have struggled, with many going out of business during the DRBC’s moratorium, while Susquehanna County farms have benefited from gas revenue. Critics, including Pennsylvania State Senators Gene Yaw and Lisa Baker, argue the ban constitutes an unconstitutional “taking” of property rights without compensation, violating the Fifth Amendment.

Lawsuits filed by groups like the Wayne Land and Mineral Group challenge the DRBC’s authority, asserting it oversteps its mandate under the 1961 Delaware River Basin Compact.The lack of a clear rationale for treating the basins differently fuels skepticism.

The DRBC and SRBC share nearly identical member states, yet the DRBC dismisses the SRBC’s empirical data showing no significant impacts from fracking. The DRBC’s reliance on studies highlighting potential risks, rather than the SRBC’s real-world evidence, suggests selective use of science. For instance, the Pennsylvania DEP’s 2016 report found no water contamination threats from fracking, aligning with SRBC findings, yet the DRBC ignores this in favor of broader, less conclusive studies.

Critics argue this discrepancy stems from political pressures rather than science. The DRBC’s member states—New York, New Jersey, and Delaware—have historically leaned against fossil fuel development, with New York banning fracking statewide in 2014. Pennsylvania’s Governor Tom Wolf, despite the state’s robust fracking industry, supported the DRBC ban, fulfilling a 2014 campaign promise.

The politics behind the DRBC’s decision are evident in its response to public and environmental advocacy. The 2021 ban followed intense pressure from groups like the Delaware Riverkeeper Network and the Sierra Club, who framed fracking as a threat to public health and climate goals. Public hearings saw overwhelming anti-fracking sentiment, with no speakers at a February 2021 hearing supporting the practice.

This contrasts with the SRBC’s more pragmatic approach, balancing energy development with environmental oversight, reflecting less political resistance in its member states.

The DRBC’s ban also raises questions about regulatory overreach. Unlike the SRBC, which regulates water use but not land-based activities like drilling, the DRBC’s prohibition extends to banning fracking outright, prompting lawsuits alleging it exceeds its authority under the Compact.

The SRBC’s data-driven approach, showing manageable impacts, undermines the DRBC’s claim of “significant risks,” suggesting the ban may prioritize political optics over evidence.

In conclusion, the DRBC’s fracking ban, contrasted with the SRBC’s permissive stance, highlights a lack of equal justice for landowners and inconsistent application of science. The DRBC’s decision, driven by political pressures and selective evidence, denies economic benefits to communities in the Delaware basin while ignoring the SRBC’s successful oversight of fracking. As legal challenges continue, the disparity between these basins underscores the need for a more equitable, evidence-based approach to resource management.

To address the disparities between the Delaware River Basin Commission (DRBC) and Susquehanna River Basin Commission (SRBC) positions on fracking, and the associated equal justice concerns, several steps could be taken to promote fairness, consistency, and evidence-based policymaking. These remedies focus on legal, regulatory, and political actions to align the commissions’ approaches and address the economic and environmental concerns of stakeholders.

1. Legal Challenges and Judicial Review: Ongoing lawsuits, such as those filed by the Wayne Land and Mineral Group, challenge the DRBC’s authority to ban fracking outright, arguing it exceeds its mandate under the 1961 Delaware River Basin Compact. Landowners and industry groups should continue pursuing these cases to seek judicial clarification on the DRBC’s jurisdiction. A favorable ruling could overturn the ban or require the DRBC to regulate fracking similarly to the SRBC, focusing on water use rather than outright prohibition. Additionally, landowners could strengthen claims of unconstitutional “takings” under the Fifth Amendment, potentially securing compensation for lost economic opportunities.

2. Legislative Oversight and Reform: State legislatures, particularly in Pennsylvania, could exert pressure on the DRBC to align its policies with the SRBC’s data-driven approach. Pennsylvania lawmakers, like Senators Gene Yaw and Lisa Baker, have already criticized the DRBC’s ban. They could introduce legislation to limit the DRBC’s authority or mandate consistency with the SRBC’s regulatory framework. Alternatively, Congress could amend the Delaware River Basin Compact to clarify the DRBC’s scope, ensuring it cannot impose blanket bans without empirical justification. Such reforms would address the lack of rationale for treating the basins differently.

3. Independent Scientific Review: To resolve the discrepancy in how the DRBC and SRBC interpret fracking’s environmental impacts, an independent scientific panel could be convened, involving experts from the EPA, USGS, and academic institutions. This panel would compare the SRBC’s monitoring data—showing no significant water quality impacts from fracking—with the DRBC’s cited studies, which emphasize potential risks. A comprehensive, basin-specific study could provide a unified framework for both commissions, reducing reliance on selective science and political influence. The DRBC could be pressured to adopt the SRBC’s monitoring and mitigation strategies, such as low-flow protections and water recycling, if the data supports their efficacy.

4. Stakeholder Engagement and Transparency: The DRBC’s decision-making process has been criticized for favoring anti-fracking advocacy groups. To address this, the DRBC could hold balanced public hearings, ensuring equal representation from landowners, industry, and environmentalists. Transparent cost-benefit analyses, comparing the economic losses in Wayne and Pike counties to the SRBC’s successful fracking oversight, would highlight the inequity. Engaging local communities through town halls or economic impact studies could build support for a regulatory approach that mirrors the SRBC’s, allowing controlled fracking with stringent oversight.

5. Federal Mediation: Given that both commissions include federal representation via the U.S. Army Corps of Engineers, the federal government could mediate to harmonize policies. The Department of the Interior or EPA could facilitate discussions between the DRBC and SRBC to establish consistent standards for fracking regulation across the Marcellus Shale region. This could include adopting the SRBC’s model of permitting water withdrawals with strict environmental safeguards, addressing the DRBC’s concerns while allowing economic development.

6. Economic Compensation Mechanisms: To address equal justice concerns, Pennsylvania or the DRBC could explore compensation programs for landowners denied fracking revenue due to the ban. Similar to conservation easements, a fund could be established—potentially financed by state or federal grants—to support affected farmers and businesses in Wayne and Pike counties. This would mitigate the economic disparity with Susquehanna County, where fracking has bolstered local economies.

7. Political Advocacy and Public Pressure: Grassroots campaigns by affected landowners, supported by industry groups, could highlight the DRBC’s political motivations and push for policy change. Publicizing the SRBC’s success in managing fracking without significant environmental harm could shift public opinion and pressure DRBC member states, particularly Pennsylvania’s governor, to reconsider the ban. Advocacy groups could also lobby New York and New Jersey to adopt a more balanced view, given their influence on the DRBC’s decisions.

Implementing these remedies would require coordination among stakeholders, including state governments, federal agencies, and local communities. By prioritizing evidence-based regulation, legal accountability, and equitable economic opportunities, the DRBC could align its policies with the SRBC’s, ensuring fair treatment for all basin residents while addressing environmental concerns.

I’d say that’s about right. What say you, readers?

#Fracking #NaturalGas #DRBC #SRBC #EqualJustice