Shepstone Management Company, Inc.
PA State Senators Joseph B. Scarnati, Lisa Baker and Gene Yaw have moved to be admitted as intervenors in what they effectively called a DRBC takings case.
When the Wayne Land and Minerals Group (WLMG) initially filed its lawsuit against the DRBC’s attempt to regulate gas drilling as if a well pad was somehow a water project, three Pennsylvania State Senators filed a petition to intervene in the case in favor of the Commonwealth and its landowners. That petition wasn’t approved, although the Delaware Riverkeeper was approved, which tells you a lot about the undue influence environmental groups wield in Federal courts.
The Scranton Federal District Court judge’s decision in that initial case was a highly unusual one in that it largely trashed the DRBC for its inconsistency and outrageous inaction on regulations, but then ruled that well pads were, indeed, water projects. WLMG then appealed the decision to the Third Circuit Court of Appeals, which remanded the case back to Scranton with direction to consider the arguments of WLMG. Now, the three Senators have again filed to intervene. They have, in the process, raised two additional and very powerful points and have made it clear there is a DRBC takings issue that will not be ignored.
Pennsylvania State Senate Chamber
The DRBC takings issue is laid out nicely in this excerpt from the Senators’ filing (emphasis added):
37. The Senators incorporate the foregoing paragraphs as if fully set forth herein.
38. The Fifth Amendment to the United States Constitution provides that private property shall not “be taken for public use, without just compensation.” U.S. Const. amend. V (the “Takings Clause”).
39. The Takings Clause applies not only to a physical taking of property, but also to governmental regulations that substantially diminish the economic value of land or significantly hamper its economically beneficial use.
40. As a preliminary matter – and apart from the fact that the Commission’s interpretation of the Compact is untenable under ordinary principles of contractual construction – the moratorium is not reasonably necessary to effectuate the Commission’s purpose, as set forth in the Compact.
41. To the extent the challenged conduct is found to be a valid exercise of authority granted to the Commission by the Compact, the moratorium constitutes a regulatory taking without just compensation of privately-owned land within the Formation that is encompassed by the Basin.
42. Furthermore, because that moratorium extends beyond privately owned property and prohibits the Commonwealth from executing leases for the extraction of natural gas from state-owned land within the Basin, it also constitutes a regulatory taking without just compensation of publicly-owned land held in trust for the benefit of the citizens of the Commonwealth.
43. Accordingly, to the extent this Court finds that the de facto moratorium is within the ambit of authority transferred to the Commission under the Compact, the Senators respectfully request that this Court declare it an unconstitutional regulatory taking under the Fifth Amendment and, in consequence, enter an order: (a) invalidating the moratorium and enjoining the Commission from enforcing it; or, in the alternative (b) directing the Commission to afford just compensation for the diminution of the economic value of the property it has appropriated.
This is a well done argument on behalf of not only landowners, but also with respect to the interests of all citizens of the Commonwealth. One can even hear echoes of the environmental rights amendments reasoning advanced by the likes of the Delaware Povertykeeper a/k/a Riverkeeper in the language about lands held in trust. The Senators show us that argument is a two-way street.
We also hear echoes of Senator Lisa Baker’s proposed legislation in SB 1189 to deliver equal justice to DRBC region landowners. When the Senators say “the moratorium is not reasonably necessary to effectuate the Commission’s purpose,” they are referring to the fact the SRBC, governed by the same majority as the DRBC, has found it can fulfill its mission and protect water quality without a moratorium or ban. It’s an argument that can’t really be broken and, by turning it on its head, the Senators make a compelling DRBC takings case.
The beauty of this, of course, is that the DRBC couldn’t possibly afford to reimburse landowners for takings, meaning, as a practical matter, that if accepted by the court, it forces the DRBC to do what it should have done long ago and regulate gas drilling water use in the same reasonable way it does with its SRBC hat on its head.
The Senators also very effectively note, with respect to the challenge now before the District Court, that the “the Court of Appeals remanded the matter “for additional fact-finding on the intent of the Compact’s drafters.” That’s what this is case is all about, of course. The SRBC has stuck to original intent, whereas the DRBC, under former Executive Director Carol Collier, and now at the direction of four demagogic governors, took a hard left turn and attempted to turn it into a super land use agency that usurps the power of the states.
The Senators state their “involvement this action will assist the parties and this Court in discerning legislative intent,” which is also a compelling argument. After all, who could be better to reflect on legislative intent than legislators? The Senator’s explain:
The Senators’ interests will be affected by the disposition of this action because the Court’s ruling will necessarily tum on the legislature’s intent as a party to a contract. Moreover, the Court’s assessment of that intent and the attendant circumstances of the Compact’s execution will also affect other interstate agreements which the General Assembly has approved, or may contemplate approving in the future.
That’s well said. The DRBC is attempting to intrude on the role of the Commonwealth in regulating a land use and render legislators irrelevant. The Senators are saying “Whoa.”
All in all, this is an excellent piece of work. Landowners and anyone who gives a damn about equal justice and the rule of law ought to standing up and doing a long slow clap for Senators Scarnatt, Baker and Yaw.
The post Pennsylvania State Senators Lay Down A DRBC Takings Marker appeared first on Natural Gas Now.
https://www.shaledirectories.com/blog/pennsylvania-state-senators-lay-down-a-drbc-takings-marker/
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