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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ______________________________ WAYNE LAND AND MINERAL : GROUP, LLC, : : Plaintiff : : v. : No. 3:16-cv-00897-RDM : Honorable Robert D. Mariani DELAWARE RIVER BASIN : COMMISSION : : Defendant, and : : DELAWARE RIVERKEEPER : NETWORK and MAYA VAN : ROSSUM, THE DELAWARE : RIVERKEEPER, : : Intervenors-Defendants : ______________________________ : SENATORS JOSEPH B. SCARNATI, LISA BAKER AND GENE YAW’S MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO INTERVENE AS PARTIES PLAINTIFF Senators Joseph B. Scarnati, Lisa Baker and Gene Yaw (collectively, the “Senators”), in their official capacities, hereby submit their memorandum of law in support of their Motion to Intervene as Parties Plaintiff (the “Motion”). The Motion should be granted because the Senators are entitled to intervene in this action as a matter of right pursuant to Federal Rule of Civil Procedure (the “Rule”

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or “Rules”) 24(a)(2) and also should be allowed to intervene by permission pursuant to Rule 24(b)(1)(B). I.

PROCEDURAL HISTORY On May 17, 2016, Plaintiff Wayne Land and Mineral Group, LLC

(“WLMG”) filed its Complaint for a declaratory judgment against Defendant Delaware River Basin Commission (“DRBC”). See Docket No. 1. On July 8, 2016, DRBC filed a motion to dismiss the Complaint, which currently is pending before the Court. Id. at No. 12. Intervenors-Defendants Delaware Riverkeeper Network and Maya K. van Rossum, the Delaware Riverkeeper (collectively “DRN”) filed a motion to intervene as defendants on July 5, 2016. Id. at No. 10. The Court granted DRN’s motion to intervene on September 21, 2016. Id. at No. 25 (Memorandum Opinion) and No. 26 (Order). II.

STATEMENT OF FACTS In its Complaint WLMG seeks a declaration that DRBC does not have

jurisdiction under the Delaware River Basin Compact (the “Compact”) to review a natural gas well pad, a gas well and related facilities that WLMG intends to develop on its property in Pennsylvania located in the Delaware River Basin (the “Basin”). WLMG’s request for declaratory relief is premised on DRBC’s stated position, described in the Complaint, that any activity or development that takes

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place in the Basin that uses water in some manner is a “project” under Section 3.8 of the Compact, which DRBC contends it has authority under the Compact to review. Specifically, DRBC has determined that natural gas well pads and related facilities that may be developed in the Basin to drill for natural gas in shale formations are “projects,” which it is required to review and approve. DRBC’s interpretation of the term “project” renders virtually any activity, development or other human undertaking in the Basin a “project” over which DRBC presumably would have authority. The Senators are duly elected members of the Pennsylvania Senate. Senator Scarnati represents the 25th Senatorial District and is the President Pro Tempore of the Pennsylvania Senate; Senator Baker represents the 20th Senatorial District; and, Senator Yaw represents the 23rd Senatorial District. The Pennsylvania Senate and the Pennsylvania House of Representatives comprise the Pennsylvania General Assembly. Under Articles II and III of the Pennsylvania Constitution, the General Assembly alone has the power to pass legislation, and only the Governor has authority to veto passed legislation. See Pa. Constitution, Art. II and III. Pursuant to this authority, the Pennsylvania General Assembly has enacted a comprehensive set of laws and related regulations that govern activities related to drilling for

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natural gas in shale formations in Pennsylvania, including laws that address the development of gas well pads, gas wells and related facilities and activities. See 58 Pa.C.S. §§3201, et seq. Notwithstanding this comprehensive statutory and regulatory framework duly enacted by the Pennsylvania General Assembly, DRBC, through its interpretation of Section 3.8 of the Compact, has taken upon itself the role of arbiter of who may construct well pads or related facilities and engage in related drilling activities in those parts of Pennsylvania that are contained in the Basin. DRBC’s actions described in the Complaint: (i) usurp the authority of the Pennsylvania General Assembly (including the Senate) to enact laws that permit commercial activities within the Commonwealth of Pennsylvania under certain defined circumstances; and (ii) seek to abrogate laws duly enacted by the Pennsylvania General Assembly (including the Senate) that permit the development of gas well pads, gas wells and related facilities and that also allow drilling for natural gas in shale formations. The Senators seek to intervene as plaintiffs in this matter to protect their legislative authority as elected members of the Pennsylvania Senate, as well as the authority of the entire General Assembly. Specifically, if permitted to intervene, the Senators will seek to ensure that any ruling from the Court provides that: (i)

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DRBC does not have authority to review and approve natural gas well pads, gas wells and related facilities in Pennsylvania; and (ii) the term “project” in Section 3.8 of the Compact does not encompass virtually any activity, development or other human undertaking in the Basin (including, but not limited to, the development of natural gas well pads, gas wells and related facilities). III.

STATEMENT OF QUESTION Question: Do the Senators have the right to intervene in this action as plaintiffs pursuant to Rule 24(a)(2) or, in the alternative, should the Court permit the Senators to intervene pursuant to Rule 24(b)(1)(B)? Suggested Answer:

IV.

Yes.

ARGUMENT A.

The Senators are Entitled to Intervene as of Right

Rule 24(a)(2) provides that: “On timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless the parties adequately represent that interest.” See F.R.C.P. 24(a)(2). Applying Rule 24(a)(2), courts have identified four factors that must be satisfied for there to be a right to intervene: (1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest

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may be affected or impaired, as a practical matter by the disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation. See Memorandum Opinion at 3 (Docket No. 25). The Senators satisfy each of these four requirements. 1.

The Senators’ Motion is Timely

In determining whether a motion to intervene is timely, a court should consider: “(1) how far the proceedings have gone when the movant seeks to intervene, (2) the prejudice which resultant delay might cause other parties, and (3) the reason for delay.” Id. at 4. This action still is in its early stages and the parties have not commenced discovery. Moreover, while DRBC has filed a motion to dismiss, the Court has yet to rule on this motion and the Senators do not seek to delay any ruling. In addition, the Court recently granted DRN’s motion to intervene and DRN has just entered this action as a defendant. Under these circumstances, the Senators’ intervention will not cause any delay or prejudice the parties. Consequently, the Motion is timely. 2.

The Senators Have a Sufficient Interest in This Litigation

A proposed intervenor is required to demonstrate an interest relating to the property or transaction that is the subject of the litigation. See American Farm Bureau Federation v. EPA, 278 F.R.D. 98, 104 (M.D. Pa. 2011). This interest

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must be “significantly protectable.” See Memorandum Opinion at 4 (Docket No. 25). “Significantly protectable” means that the interest “must be a legal interest as distinguished from interests of general and indefinite character.” Id. at 4-5. There must be a tangible threat to the proposed intervenors legally cognizable interest. Id. at 5. The Senators have “significantly protectable” interests in this litigation as elected members of the Pennsylvania Senate and the Pennsylvania General Assembly. Specifically, the Senators’ interests include: (i) a specific interest in seeing that activities related to shale drilling are permitted to take place in accordance with the statutory and regulatory framework duly enacted by the Pennsylvania Senate and the Pennsylvania General Assembly and that these laws are not abrogated by DRBC’s interpretation of the Compact; and (ii) a broader interest in preventing DRBC from usurping the Pennsylvania Senate’s and the Pennsylvania General Assembly’s authority to regulate commercial activity within those sections of the Basin located in Pennsylvania and from intruding upon their legislative prerogative. The Pennsylvania General Assembly alone has the power to pass legislation and only the Governor has authority to veto passed legislation. See Pa. Constitution, Art. II and III. The Senators’ interests described above are legal

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interests that derive directly from the legislative authority conferred on them by the Pennsylvania Constitution. Indeed, pursuant to this authority, the General Assembly has enacted a careful legislative plan that regulates shale drilling activities. This plan will be rendered meaningless if DRBC can prohibit landowners in the Basin from engaging in any activities related to such drilling. Only the Pennsylvania General Assembly has the authority to regulate this activity. Moreover, the Commonwealth of Pennsylvania did not surrender authority to regulate such commercial activity in the Basin simply by entering into the Compact. See Int’l Union of Operating Engineers, Local 542 v. Delaware River Joint Toll Bridge Comm’n, 311 F.3d 273, 276 (3d Cir. 2002) (stating that where states enter into compact they surrender a portion of their sovereignty but “[s]uch a surrender of state sovereignty should be treated with great care, and the Supreme Court has stated that courts should not find a surrender unless it has been ‘expressed in terms too plain to be mistaken.’”) (citation omitted); Spence-Parker v. Delaware River and Bay Auth., 616 F.Supp.2d 509, 515 (D.N.J. 2009) (same). DRBC, by interpreting Section 3.8 of the Compact, and in particular the term “project,” to confer authority on it to review and approve virtually any human undertaking in the Basin – including the development of natural gas well pads and related facilities in those areas of Pennsylvania located in the Basin – is improperly

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trampling on the legislative authority of the Pennsylvania General Assembly (which includes the Pennsylvania Senate). Therefore, the Senators have a “significantly protectable” interest in this litigation. 3.

The Senators’ Interest may be Affected or Impaired by the Disposition of This Action

The Senators’ interests plainly may be affected by the disposition of this action. To satisfy this element, a proposed intervenor “must show only that impairment of its substantial legal interest is possible if intervention is denied” and the burden required to make this showing is “minimal.” See American Farm Bureau, 278 F.R.D. at 108. “In determining whether the [Senators’] interest may be impaired, the Court must consider the nature of the relief sought as well as the practical consequences of such a ruling.” See Memorandum Opinion at 6 (Docket No. 25). In its Complaint WLMG seeks declaratory relief that DRBC does not have authority to review and approve WLMG’s proposed well pad, related facilities and related drilling activities. See Complaint at 18 (Docket No. 1). In order to decide whether this relief should be granted, the Court will need to determine the scope of the term “project” in Section 3.8 of the Compact—i.e., what is a “project” under Section 3.8 and whether it includes WLMG’s proposed activities. The Court’s ultimate ruling in this action will directly affect the authority that DRBC has to {01079264;v1 }

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review and approve commercial activities in Pennsylvania that already are governed by duly enacted Pennsylvania laws. The Senators’ interests and legislative prerogative could be impaired, for instance, if the Court were to deny the requested declaratory relief and rule that under Section 3.8 of the Compact DRBC in fact has the authority to review, approve, and potentially prohibit shale drilling activities that laws passed by the Pennsylvania General Assembly otherwise allow. Such a ruling would constitute a finding that a significant aspect of the General Assembly’s authority had been ceded to the DRBC under the Compact. Furthermore, the practical consequences of such a ruling could lead to further encroachment by DRBC upon the Pennsylvania Senate’s and the Pennsylvania General Assembly’s legislative prerogative to regulate commercial activities in Pennsylvania under the guise of its Section 3.8 “project” review authority. Indeed, the stare decisis effect of any ruling by this Court on the meaning of “project” could significantly impair the Senators’ interests. See Doe v. Allentown School District, 2009 WL 2058726 at *5 (E.D. Pa. July 10, 2009) (noting that courts have found right to intervene where determination of action in absence of proposed intervenor will have stare decisis effect on proposed intervenor’s rights). In short, there is no real question that the

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disposition of this action will affect, and could significantly impair, the Senators’ interests. 4.

The Senators’ Interest is not Adequately Represented by WLMG

WLMG does not adequately represent the Senators’ interests, which relate directly to their legislative authority, because the Senators’ interests are different and broader than WLMG’s specific economic interest in having the ability to develop its land. A proposed intervenor only is required to “show that representation may be inadequate, not that it is inadequate.” See American Farm Bureau, 278 F.R.D. at 110 (emphasis in original). Inadequate representation can be established where “although the applicant’s interest are similar to those of a party, they diverge sufficiently that the existing party cannot devote proper attention to the applicant’s interest.” See Memorandum Opinion at 8 (Docket No. 25). “The possibility that the interests of the applicant and the parties may diverge ‘need not be great’ in order to satisfy the minimal burden.” American Farm Bureau, 278 F.R.D. at 110 (citation omitted). There is a divergence of interests here because WLMG’s interest is a more narrow economic interest focused on its ability to develop a well pad and gas well on its property in the Basin. For instance, the dispute between WLMG and DRBC potentially could be resolved if DRBC simply approved the activities that WLMG

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seeks to conduct without this Court resolving the issue of DRBC’s authority under Section 3.8 of the Compact. The Senators’ interests, on the other hand, are broader legal interests focused on whether Section 3.8 gives DRBC the extensive authority it now claims it has to review and approve virtually any commercial activity in the Basin (if it unilaterally deems such activity to be a “project”)—including the development of well pads and gas wells in the Pennsylvania sections of the Basin. The Senators ultimately are concerned with DRBC’s attempt to usurp basic legislative functions through its broad interpretation of the term “project” in Section 3.8 of the Compact, not simply whether WLMG can proceed with the development activities it has planned for its property. Therefore, WLMG’s representation of the Senators’ interests in this action may be inadequate. See Allentown School District, 2009 WL 2058726 at *5 (finding that private litigant did not adequately represent United States’ interest and stating: “Governmental entities have litigation interests that are inherently different from the interests of private litigants, as governmental entities intervene to protect the interests of a broad constituency of citizens. Plaintiffs only represent their individual interests . . . .”) (citation omitted); Cf. American Farm Bureau, 278 F.R.D. at 110-11 (intervenor’s interests not adequately represented by party where party’s interests were broader than intervenors).

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Accordingly, the Senators have satisfied the four factors courts consider under Rule 24(a)(2) and are entitled to intervene in this action as a matter of right. B.

The Senators Should be Permitted to Intervene

In the alternative, the Motion also should be granted because the Senators should be permitted to intervene in this case. Pursuant to Federal Rule of Civil Procedure 24(b)(1)(B), a court may permit a timely applicant to intervene if the applicant “has a claim or defense that shares with the main action a common question of law or fact.” See F.R.C.P. 24(b)(1)(B). In exercising this discretion, “the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights. See F.R.C.P. 24(b)(3). Courts also consider whether a proposed intervenor will add anything to the litigation. See Memorandum Opinion at 9 (Docket No. 25). As discussed above, the Senators’ Motion is timely. In addition, the Senators’ claim shares common issues of law and fact with WLMG’s claim—both deal with the basic issue of the DRBC’s authority to review and approve certain activities in the Basin, i.e., what constitutes a “project” under Section 3.8 of the Compact. Furthermore, permitting the Senators to intervene will not unduly delay or prejudice the adjudication of WLMG’s, DRBC’s or DRN’s rights. This action is in

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a very early stage. DRBC’s motion to dismiss is pending and the Court only recently granted DRN’s motion to intervene. Moreover, the existence of common questions of law and fact mean that allowing the Senators to intervene will not interject entirely new issues into this matter. Finally, the Senators will add to this litigation. At the core of this dispute is the question of whether DRBC potentially can exercise authority over, and even prohibit, activities that already are the subject of a comprehensive statutory and regulatory framework duly enacted by the Pennsylvania General Assembly. The Senators will bring the Pennsylvania legislature’s perspective to this dispute, which will be important for the Court to consider in reaching a determination of whether under the Compact Pennsylvania ceded certain authority to DRBC. Accordingly, if the Court does not find that the Senators can intervene as of right, it should permit them to intervene pursuant to Rule 24(b)(1).1 V.

CONCLUSION The Senators have a right to intervene pursuant to Rule 24(a)(2). Solely in

the alternative, the Senators should be permitted to intervene pursuant to Rule Rule 24(c) further requires that a motion to intervene must be accompanied by a pleading that sets out the claim or defense for which intervention is sought. See F.R.C.P. 24(c). As set forth in the Senators’ Motion, if the Senators are permitted to intervene as a parties plaintiff in this action, they intend to adopt in whole WLMG’s complaint. If the Court deems it appropriate or necessary, the Senators also are prepared to file a separate complaint. 1

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24(b)(1)(B). Accordingly, the Senators respectfully request that the Court grant the Motion and allow them to intervene as parties plaintiff in this action. Respectfully submitted, /s/ Matthew H. Haverstick Matthew H. Haverstick, Esq. (No. 85072) Eric J. Schreiner (No. 76721) Mark E. Seiberling (No. 91256) KLEINBARD LLC One Liberty Place, 46th Floor 1650 Market Street Philadelphia, PA 19103 Ph: (215) 568-2000 Email: [email protected] [email protected] [email protected] Joshua J. Voss (No. 306853) KLEINBARD LLC 115 State Street, 2nd Floor Harrisburg, PA 17101 Ph: (717) 836-7492 Fax: (215) 568-0140 Email: [email protected] Dated: October 25, 2016

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Counsel for Proposed Intervenors Senators Joseph Scarnati, Lisa Baker and Gene Yaw

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CERTIFICATE OF SERVICE I hereby certify that on October 25, 2016, I caused a true copy of Senators Joseph B. Scarnati, Lisa Baker and Gene Yaw’s Memorandum of Law in Support of Motion to Intervene as Parties Plaintiff to be served upon the following via the Court’s ECF System: David R. Overstreet, Esq. Overstreet & Nestor, LLC 461 Cochran Road, Box 237 Pittsburgh, PA 15228 Christopher R. Nestor, Esq. Overstreet & Nestor, LLC 1425 Crooked Hill Road #62066 Harrisburg, PA 17106-2066 Jeffrey Belardi, Esq. Belardi Law Offices 410 Spruce Street, 4th Floor Scranton, PA 18503 Attorneys for Plaintiff Wayne Land and Mineral Group, LLC Kenneth J. Warren Warren Environmental Counsel LLP 975 Mill Road Millridge Manor House Suite A Bryn Mawr, PA 19010 Attorneys for Defendant Delaware River Basin Commission Jordan B. Yeager Curtin & Heefner, LLP Doylestown Commerce Center 200 S. Easton Road, Suite 100 Doylestown, PA 18901

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Attorneys for Intervenors-Defendants Delaware Riverkeeper Network and Maya K. Van Rossum, the Delaware Riverkeeper

/s/ Matthew H. Haverstick Matthew H. Haverstick, Esq. (No. 85072) Eric J. Schreiner (No. 76721) Mark E. Seiberling (No. 91256) KLEINBARD LLC One Liberty Place, 46th Floor 1650 Market Street Philadelphia, PA 19103 Ph: (215) 568-2000 Email: [email protected] [email protected] [email protected] Joshua J. Voss (No. 306853) KLEINBARD LLC 115 State Street, 2nd Floor Harrisburg, PA 17101 Ph: (717) 836-7492 Fax: (215) 568-0140 Email: [email protected]

Dated: October 25, 2016

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Counsel for Proposed Intervenors Senators Joseph Scarnati, Lisa Baker and Gene Yaw