Damascus Township and PA Senate Republicans Sue DRBC

Tom Shepstone
Shepstone Management Company, Inc.

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Another lawsuit, on behalf of Damascus Township, Senators Lisa Baker and Gene Yaw and PA Senate Republicans has been filed against the DRBC!

Damascus Township, my hometown, together with Pennsylvania State Senators Lisa Baker and Gene Yaw and the Pennsylvania State Senate Republican Caucus has filed a great lawsuit against the power-grabbing DRBC. It’s an intriguing lawsuit with some new arguments that really put things into perspective. It’s also very tightly written to give a powerful punch that nicely complements the DRBC lawsuit already on its way to a Federal Court trial.

Damascus Township was the site of two gas drilling test wells over a decade ago and the Township itself owns land that was leased for natural gas development. It is also a very large township (over 50,000 acres) and has numerous large properties suitable for gas leasing. It has major cause to be outraged by the DRBC’s arbitrary moratorium on gas drilling and every reason to join with Senators Baker ad Yaw on this lawsuit.

And, what a fine lawsuit it is. It’s worth reading in its entirety but, starting on page 15, the counts are laid out very succinctly:

1. The Compact expressly outlines the factual findings of the state legislature of each of the Member States—including the Pennsylvania General Assembly—and clearly states that its terms represent the policy judgment of the respective legislative bodies. Given that the Compact is a quintessential legislative contract, the Senate Plaintiffs stand in privity of contract in this action and are entitled to maintain such claims and advance such argument as any party to an ordinary contract.

2. The Fifth Amendment to the United States Constitution provides that private property shall not “be taken for public use, without just compensation.” 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. Similarly, Article I section 10 of the Pennsylvania Constitution provides, in pertinent part that, “private property [shall not] be taken or applied to public use, without authority of law and without just compensation being first made or secured.” The safeguards established under Article I, Section 10 of the Pennsylvania State Constitution is equal to—or greater than—the protections afforded under the Takings Clause. Because that moratorium prohibits the Commonwealth from executing leases for the extraction of natural gas from state-owned land within the Basin, it is a regulatory taking of the Trust without just compensation. As such, the imposition of the moratorium relative to the Trust constitutes a condemnation of “property of a signatory state” in violation of the limited “grant of power of eminent domain” under Section 14.14 of the Compact.

3. By foreclosing the only commercially viable method for natural gas extraction, the Commission has deprived the Marcellus Shale gas of all economic use and, thus, effectively appropriated the property interest of individual landowners in those minerals; and exponentially diminished the value of property situated within the Basin-Marcellus overlapping region and interfered with the distinct investment-backed expectations of countless landowners. The Commission’s moratorium, therefore, constitutes a regulatory taking of private property, which is separate and apart from its taking of property owned by the Commonwealth.

4. Article IV, Section 4 of the United States Constitution guarantees a republican form of government to all States. The central feature of a republican form of government is the right of the people to choose their own officers for governmental administration and pass laws in virtue of the legislative power reposed in representative bodies. By usurping legislative and regulatory authority existing under the constitutional framework of the Commonwealth of Pennsylvania—and replacing state law with the dictates of a notice issued by an unelected official employed by an interstate agency—the Commission has deprived 5.5 million Pennsylvanians of their ability to choose their laws and governmental structure, thereby violating the Guarantee Clause.

Notice Damascus Township and the Senators are arguing there is not only a regulatory taking of private, but also the Commonwealth’s own land which is held in trust for the public. Such land includes state forests, state parks, state game lands, fish and boat commission land; all forms of which have been developed for natural gas, generating major revenues for the Commonwealth and conservation programs. There are examples of each throughout Wayne County. Likewise, Damascus Township owns at least 130 acres as well.

What this lawsuit does in this regard is quite fascinating; it uses the Pennsylvania Environmental Rights Amendment (the Delaware PovertyKeeper’s favorite weapon) to make the case the DRBC has no right to condemn public land held of this sort that is held in trust:

Pursuant to the Environmental Rights Amendment to the Pennsylvania Constitution (the “ERA”), see Pa. Const. art. I, § 27, the public natural resources of the Commonwealth are held in trust for the benefit of the people (the “Trust”). The corpus of the Trust consists of the natural resources and all funds derived from their sale or lease.

As trustees, both the Senate Plaintiffs and all municipalities, including Damascus Township, cannot allow the Trust’s corpus to be managed in a manner inconsistent with the ERA. In order to prevent diminution of the Trust’s corpus, the Senate Plaintiffs and Damascus Township may bring and defend actions that impact the Trust, and take reasonable steps to increase the value of the Trust’s assets.

It’s beautiful thing! One can only imagine the seething taking place on the upper floor of that gas-heated building in Bristol where Maya van Rossum has her offices as she reads this interpretation of the ERA she has brandished as a knife for ripping apart the future of Upper Delaware landowners. Bravo!

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