Gene Yaw v. Delaware River Basin Commissio ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 21-2315
_______________
GENE YAW, Senator; LISA BAKER, Senator;
THE PENNSYLVANIA SENATE REPUBLICAN
CAUCUS, in their Official Legislative Capacities and as
Trustees of the Natural Resources of the Commonwealth of
Pennsylvania; DAMASCUS TOWNSHIP, in its Official and
as Trustee of the Natural Resources of the Commonwealth of
Pennsylvania; DYBERRY TOWNSHIP; WAYNE
COUNTY; CARBON COUNTY
v.
THE DELAWARE RIVER BASIN COMMISSION
DELAWARE RIVERKEEPER NETWORK; MAYA K.
VAN ROSSUM; SENATOR STEVEN SANTARSIERO;
SENATOR CAROLYN COMITTA; SENATOR AMANDA
CAPPELLETTI; SENATOR MARIA COLLETT;
SENATOR WAYNE FONTANA; SENATOR ART
HAYWOOD; SENATOR VINCE HUGHES; SENATOR
JOHN KANE; SENATOR TIM KEARNEY; SENATOR
KATIE MUTH; SENATOR JOHN SABATINA; SENATOR
NIKIL SAVAL; SENATOR JUDY SCHWANK; SENATOR
SHARIF STREET; SENATOR TINA TARTAGLIONE;
SENATOR ANTHONY WILLIAMS;
BUCKS COUNTY; MONTGOMERY COUNTY
(Intervenors in District Court)
Gene Yaw, Senator; Lisa Baker, Senator, The Pennsylvania
Senate Republican Caucus, In their Official Legislative Ca-
pacities and as Trustees of the natural resources of the Com-
monwealth of Pennsylvania; Damascus Township, In its Offi-
cial Capacity and as Trustee of the Natural Resources of the
Commonwealth of Pennsylvania;
Dyberry Township; Wayne County
Appellants
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:21-cv-00119)
District Judge: Paul S. Diamond
_______________
Argued: March 31, 2022
Before: RESTREPO, ROTH, and FUENTES, Circuit Judges
(Filed: September 16, 2022)
_______________
Shohin H. Vance [ARGUED]
Matthew H. Haverstick
Joshua J. Voss
Samantha G. Zimmer
2
Kleinbard
Three Logan Square
1717 Arch Street, 5th Floor
Philadelphia, PA 19103
Jeffrey S. Treat
926 Court Street
Honesdale, PA 18431
Counsel for Appellants
John S. Stapleton
LeVan Stapleton Segal Cochran
601 Route 73 North
Four Greentree Centre
Suite 303
Marlton, NJ 08053
Kenneth J. Warren [ARGUED]
Warren Environmental Counsel
975 Mill Road
Millridge Manor House Suite A
Bryn Mawr, PA 19010
Counsel for Appellee Delaware River Basin
Commission
Joseph J. Khan
Bucks County Law Department
55 East Court Street, 5th Floor
Doylestown, PA 18901
Counsel for Intervenor County of Bucks
Kacy C. Manahan [ARGUED]
Delaware Riverkeeper Network
3
925 Canal Street, Suite 3701
Bristol, PA 19007
Counsel for Intervenors Delaware Riverkeeper
Network and Maya K. Van Rossum
Robert A. Wiygul [ARGUED]
Peter V. Keays
Steven T. Miano
Hangley Aronchick Segal Pudlin & Schiller
One Logan Square
18th & Cherry Streets, 27th Floor
Philadelphia, PA 19103
Counsel for Intervenor Senator Steven Santarsiero,
et al
Paul J. Cohen, II
Clean Air Council
135 South 19th Street, Suite 300
Philadelphia, PA 19103
Jessica R. O’Neill
PennFuture
1429 Walnut Street, Suite 400
Philadelphia, PA 19102
Counsel for Amicus Curiae
_______________
OPINION OF THE COURT
_______________
4
FUENTES, Circuit Judge.
In February 2021, the Delaware River Basin
Commission banned high-volume hydraulic fracturing
(commonly known as “fracking”) within the Delaware River
Basin. The ban reflected the Commission’s determination that
fracking “poses significant, immediate and long-term risks to
the development, conservation, utilization, management, and
preservation of the [Basin’s] water resources.”1 The ban also
codified what had been a “de facto moratorium” on natural gas
extraction in the Basin since 2010.2
Plaintiffs-Appellants—two Pennsylvania state senators,
the Pennsylvania Senate Republican Caucus, and several
Pennsylvania municipalities—filed this lawsuit challenging
the ban. Among other things, they allege that, in enacting the
ban, the Commission exceeded its authority under the
Delaware River Basin Compact, violated the Takings Clause
of the United States Constitution, illegally exercised the power
of eminent domain, and violated the Constitution’s guarantee
of a republican form of government. The District Court did not
reach the merits of these claims because it found that Plaintiffs-
Appellants lack standing to pursue them in federal court.
Although Plaintiffs-Appellants advance several
arguments for why they have standing to challenge the ban,
none of them have alleged the kinds of injuries that Article III
demands. In our view, the state senators and the Senate
Republican Caucus lack standing because the legislative
injuries they allege affect the state legislature as a whole, and
1
Joint Appendix (“JA”) 0371.
2
JA0305.
5
under well-established Supreme Court caselaw, “individual
members lack standing to assert the institutional interests of a
legislature.”3 The municipalities lack standing because the
economic injuries they allege are “conjectural” and
“hypothetical” rather than “actual and imminent.”4 And none
of the Plaintiffs-Appellants have standing as trustees of
Pennsylvania’s public natural resources under the
Environmental Rights Amendment to the Pennsylvania
Constitution because the Commission’s ban on fracking has
not cognizably harmed the trust.
Our holding today is narrow. The fact that the plaintiffs
in this case lack standing to challenge the ban on fracking does
not mean that it will go unchallenged. Indeed, we have already
found that at least one party has Article III standing to
challenge the ban in federal court.5 Plaintiffs-Appellants are
also free to seek redress through other means. They can lobby
the Commission to reverse course based on their policy
concerns. They can try to amend the Delaware River Basin
Compact through concurrent legislation of the member states.
Or, they can persuade a party with standing to assert the
institutional injuries they allege to bring a version of this
lawsuit. What Plaintiffs-Appellants cannot do is seek redress
in federal court for broad institutional injuries about which they
have no standing to complain.
3
Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945,
1953–54 (2019).
4
Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
5
See Wayne Land and Min. Grp. LLC v. Del. River Basin
Comm’n, 894 F.3d 509, 524–25 (3d Cir. 2018).
6
Because Plaintiffs-Appellants lack Article III standing
to pursue their claims, we will affirm the order of the District
Court.
I.6
A.
The Delaware River Basin (the “Basin”) is the drainage
basin of the Delaware River. It consists of large swaths of land
in Pennsylvania, Delaware, New Jersey, and New York. In
1961, these four states and the federal government entered into
the Delaware River Basin Compact (the “Compact”), an
interstate compact aimed at facilitating a unified approach to
the “planning, conservation, utilization, development,
management and control of the [Basin’s] water resources.”7
The Compact created the Delaware River Basin Commission
(the “Commission”), a “body politic and corporate” consisting
of the governors of the four member states (or their alternates)
and a federal representative appointed by the President of the
United States.8 The Commission has a variety of powers,
including the power to: establish standards of “planning,
design and operation of all projects and facilities in the basin
which affect its water resources”; plan, construct, and complete
any projects determined to be “necessary, convenient or
useful” to the purposes of the Compact; and conduct research
6
Because this case is at the motion to dismiss stage, we accept
all factual allegations in the complaint as true. See N. Jersey
Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 371 (3d Cir.
2015).
7
JA0327.
8
JA0328.
7
on water resources and their conservation.9 The Commission
also has the power to review private projects in the Basin for
approval: under Section 3.8 of the Compact, “[n]o project
having a substantial effect on the water resources of the basin
shall . . . be undertaken by any person, corporation or
governmental authority unless it shall have been first submitted
to and approved by the [C]ommission.”10
In 2010, relying on its power of review, the Commission
instituted a “de facto moratorium” on natural gas extraction in
the Basin.11 The moratorium remained in place until February
25, 2021, at which time the Commission voted to adopt a
regulation formally banning oil and gas extraction through
high-volume hydraulic fracturing within the Basin. The
regulation provides: “High volume hydraulic fracturing in
hydrocarbon bearing rock formations is prohibited within the
Delaware River Basin.”12 The regulation defines “hydraulic
fracturing” as:
a technique used to stimulate the production of
oil and natural gas from a well by injecting
fracturing fluids down the wellbore under
pressure to create and maintain induced fractures
in the hydrocarbon-bearing rock of the target
geologic formation.13
9
JA0331.
10
JA0332.
11
JA0305.
12
JA0371.
13
JA0370.
8
Hydraulic fracturing is considered “high volume” when it uses
“a combined total of 300,000 or more gallons of water during
all stages in a well completion.”14 The ban reflected the
Commission’s determination that fracking “poses significant,
immediate and long-term risks to the development,
conservation, utilization, management, and preservation of the
water resources of the Delaware River Basin and to Special
Protection Waters of the Basin.”15 The Commission further
found that:
Controlling future pollution by prohibiting such
activity in the Basin is required to effectuate the
[Commission’s] Comprehensive Plan, avoid
injury to the waters of the Basin as contemplated
by the Comprehensive Plan and protect the
public health and preserve the waters of the
Basin for uses in accordance with the
Comprehensive Plan.16
Outside of the Basin, fracking is big business. This is
especially true in Pennsylvania, thanks in part to the Marcellus
Shale Formation, a “geological configuration housing
significant natural gas reserves.”17 Between 2010 and 2018,
“natural gas producers . . . paid approximately $10 billion in
royalties directly to Pennsylvania landowners.”18
14
Id.15
JA0371.
16
Id.17
JA0300.
18
JA0303.
9
B.
Plaintiffs-Appellants are Pennsylvania State Senators
Gene Yaw and Lisa Baker; the Pennsylvania Senate Republi-
can Caucus; and several Pennsylvania towns and counties
within the Delaware River Basin: Wayne County, Damascus
Township, and Dyberry Township.19 In early 2021, Plaintiffs-
Appellants challenged the ban on fracking by suing the Com-
mission in federal court. Several additional parties then inter-
vened as defendants, including: the Delaware Riverkeeper Net-
work and Maya K. van Rossum, its Executive Director; a col-
lection of Democratic Pennsylvania State Senators; and Bucks
and Montgomery Counties. In an Amended Complaint filed in
March 2021, Plaintiffs-Appellants allege that the ban: (1) ex-
ceeded the Commission’s authority under the Compact; (2) vi-
olated the Takings Clause of the United States Constitution;
(3) unlawfully exercised the power of eminent domain; and (4)
violated the Constitution’s guarantee of a republican form of
government.
Plaintiffs-Appellants allege several injuries stemming
from the ban. First, they allege that the ban has “palpably and
substantially diminished the legislative powers” of the “Senate
Plaintiffs”—the two Pennsylvania state senators and the Sen-
ate Republican Caucus.20 Second, Plaintiffs-Appellants allege
that the ban has precluded the “Municipal Plaintiffs”—the
Pennsylvania towns and counties within the Basin—from par-
ticipating in fracking-related economic development “made
19
Carbon County was also a plaintiff below but is not a party
to this appeal.
20
JA0315.
10
available to neighboring areas.”21 Finally, Plaintiffs-Appel-
lants allege that the ban has interfered with their ability to carry
out their fiduciary duties as trustees of Pennsylvania’s public
natural resources under the Environmental Rights Amendment
to the Pennsylvania Constitution (the “ERA”). As a remedy
for these injuries, Plaintiffs-Appellants seek declaratory relief.
Defendants-Appellees moved to dismiss the Amended
Complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, arguing, among other things, that Plaintiffs-
Appellants lacked standing to pursue their claims in federal
court. The District Court agreed, concluding that, “[a]lthough
all Plaintiffs argue vigorously that they have standing, they do
not.”22 With regard to the Senate Plaintiffs, the District Court
found that: (1) under controlling Supreme Court precedent,
individual legislators and party caucuses lack standing to
pursue the kinds of generalized legislative injuries alleged in
the Amended Complaint; (2) the Senate Plaintiffs lack standing
under the ERA because they are not ERA trustees; and (3) even
if the Senate Plaintiffs were ERA trustees, they have not
alleged a cognizable injury to the trust. The District Court
accordingly dismissed the Amended Complaint with prejudice
as to the Senate Plaintiffs.
With regard to the Municipal Plaintiffs, the District
Court found that: (1) although these plaintiffs are ERA trustees
under Pennsylvania law, “[that] status alone does not confer
standing”; (2) by only pointing to a “single missed fracking
opportunity” twelve years ago, the Municipal Plaintiffs have
failed to allege economic injuries that are actual or imminent;
21
JA0302.
22
JA0016.
11
and (3) the Municipal Plaintiffs have also failed to satisfy the
traceability and redressability requirements of Article III
standing because of the “numerous factors that control the
amount of natural gas that can be extracted from a given place
at a given time.”23 The District Court nevertheless found that
the Municipal Plaintiffs “might be able to articulate how the
[ban] has actually injured them” and accordingly gave them an
opportunity to file a Second Amended Complaint.24 The
Municipal Plaintiffs never took that opportunity, however, so
the Court eventually dismissed the Amended Complaint with
prejudice as to them as well. This timely appeal followed.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291. We exercise
plenary review over a district court’s decision to dismiss a
complaint for lack of standing.25 “[W]hen standing is chal-
lenged on the basis of the pleadings, we accept as true all ma-
terial allegations in the complaint, and . . . construe the com-
plaint in favor of the complaining party.”26
III.
Plaintiffs-Appellants argue that the District Court erred
in rejecting each of their three theories of Article III standing:
23
JA0024.
24
JA0025.
25
N. Jersey Brain & Spine Ctr., 801 F.3d at 371 (citing Bald-
win v. Univ. of Pitt. Med. Ctr., 636 F.3d 69, 74 (3d Cir. 2011)).
26
Id. (quoting FOCUS v. Allegheny Cnty. Ct. of Common
Pleas, 75 F.3d 834, 838 (3d Cir. 1996)).
12
(1) legislative, (2) economic, and (3) ERA trustee. We will
address each theory in turn. But first, some basics on federal
standing.
Article III of the U.S. Constitution endows federal
courts with the “judicial Power of the United States.”27 But it
limits that power to actual “Cases” or “Controversies.”28 Part
of the case-or-controversy requirement is the requirement that
plaintiffs have standing to sue.29 To satisfy the “irreducible
constitutional minimum” of standing, a plaintiff must establish
three elements: (1) an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is likely
redressed by a favorable judicial decision.30 To show an injury
in fact, the “first and foremost of standing’s three elements,” a
plaintiff must show an “invasion of a legally protected interest”
that is both “concrete and particularized,” and “actual or immi-
nent, not conjectural or hypothetical.”31 The plaintiff, as the
party invoking federal jurisdiction, bears the burden of estab-
lishing standing and must “clearly . . . allege facts demonstrat-
ing each element.”32
The doctrine of standing “limits the category of litigants
empowered to maintain a lawsuit in federal court to seek
27
U.S. CONST. art. III, § 1.
28
Id. § 2.
29
Raines v. Byrd, 521 U.S. 811, 818 (1997).
30
Spokeo, 578 U.S. at 338 (internal quotation marks and cita-
tions omitted).
31
Id. at 339 (quoting Lujan, 504 U.S. at 560).
32
Id. at 338 (citations and internal quotation marks omitted).
13
redress for a legal wrong.”33 And in so doing, it limits the
power of federal courts themselves. It “serves to prevent the
judicial process from being used to usurp the powers of the po-
litical branches” and “confines the federal courts to a properly
judicial role.”34 As the Supreme Court recently explained, un-
der Article III:
federal courts do not adjudicate hypothetical or
abstract disputes. Federal courts do not possess
a roving commission to publicly opine on every
legal question. Federal courts do not exercise
general legal oversight of the Legislative and Ex-
ecutive Branches, or of private entities. And fed-
eral courts do not issue advisory opinions.35
A.
Plaintiffs-Appellants first argue that the ban on fracking
caused the Senate Plaintiffs legislative injuries sufficient to
give them Article III standing. More specifically, they submit
that the Senate Plaintiffs have standing because the ban has
“deprived [them] of their lawmaking authority relative to mil-
lions of Pennsylvanians residing within the 6,000 square miles
33
Id. (citing Valley Forge Christian Coll. v. Ams. United for
Separation of Church and State, Inc., 454 U.S. 464, 473 (1982)
and Warth v. Seldin, 422 U.S. 490, 498–99 (1975)).
34
Id. at 338 (quoting Clapper v. Amnesty Int’l USA, 568 U.S.
398, 408 (2013)).
35
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).
14
of Sovereign territory subsumed by the Basin and any legisla-
tion, now or in the future, on this subject has been nullified.”36
As the District Court found, however, this argument
runs headlong into the well-established principle that individ-
ual legislators lack standing to assert institutional injuries be-
longing to the legislature as a whole. A good place to start is
the Supreme Court’s decision in Raines v. Byrd, 521 U.S. 811(1997). Raines involved a challenge to the Line Item Veto Act
of 1996, which gave the President the authority to cancel cer-
tain tax and spending measures after they were passed by Con-
gress and signed into law.37 The plaintiffs were six Members
of Congress who had voted against the Act and who argued
that it would unlawfully alter the effect of their votes, divest
them of their constitutional role in the repeal of legislation, and
alter the balance of power between the legislative and execu-
tive branches of the federal government.38 The District Court
found that the plaintiffs had standing to challenge the Act and
granted summary judgment in their favor.39
Hearing the case in an expedited fashion, the Supreme
Court held that the plaintiffs lacked standing and accordingly
vacated the order of the District Court.40 The Court noted that
the plaintiffs “[had] not been singled out for specially unfavor-
able treatment as opposed to other Members of their respective
bodies.”41 Instead, the plaintiffs had alleged that the Act
36
Plaintiffs-Appellants’ Opening Brief at 42.
37
Raines, 521 U.S. at 814.
38
Id. at 816.
39
Id.40
Id. at 813–14.
41
Id. at 821.
15
“cause[d] a type of institutional injury (the diminution of leg-
islative power), which necessarily damages all Members of
Congress and both Houses of Congress equally.”42 Moreover,
the plaintiffs “[did] not claim that they [had] been deprived of
something to which they personally [were] entitled.”43 Rather,
their “claim of standing [was] based on a loss of political
power, not loss of any private right, which would make the in-
jury more concrete.”44 Overall, the Court found that the plain-
tiffs lacked Article III standing to challenge the Act in federal
court because they “alleged no injury to themselves as individ-
uals . . . [and] the institutional injury they allege[d] [was]
wholly abstract and widely dispersed.”45 The Court also “at-
tach[ed] some importance to the fact that [the plaintiffs had]
not been authorized to represent their respective Houses of
Congress” in the lawsuit.46
Similarly, in Virginia House of Delegates v. Bethune-
Hill, 139 S. Ct. 1945 (2019), the Supreme Court held that the
Virginia House of Delegates, a “single chamber of a bicameral
legislature,” lacked standing to appeal a court’s invalidation of
a redistricting plan that the state legislature had passed.47 Cit-
ing Raines, the Court held that “[j]ust as individual members
lack standing to assert the institutional interests of a legislature
. . . a single House of a bicameral legislature lacks capacity to
assert interests belonging to the legislature as a whole.”48 In so
42
Id.43
Id. (emphasis in original).
44
Id.45
Id. at 829.
46
Id.
47
Bethune-Hill, 139 S. Ct. at 1950.
48
Id. at 1953–54.
16
holding, the Court noted that the Virginia Constitution allo-
cated redistricting authority to the “General Assembly,” of
which “the House constitute[d] only a part.”49 The Court also
pointed out that it “ha[d] never held that a judicial decision in-
validating a state law as unconstitutional inflicts a discrete,
cognizable injury on each organ of government that partici-
pated in the law’s passage.”50
By contrast, in Arizona State Legislature v. Arizona In-
dependent Redistricting Commission, 576 U.S. 787 (2015), the
Supreme Court held that the Arizona Legislature as a whole
had standing to challenge the constitutionality of a voter initi-
ative that transferred its redistricting authority to an independ-
ent redistricting commission.51 The Court noted that unlike the
Members of Congress in Raines, the Arizona Legislature
“[was] an institutional plaintiff asserting institutional injury.”52
The problem in Raines, the Court explained, was that the plain-
tiffs were “individual Members of Congress” who could not
“tenably claim a personal stake in the suit” because the institu-
tional injury at issue “scarcely zeroed in on any individual
Member.”53 The Arizona Legislature had also obtained “au-
thorizing votes in both of its chambers” before initiating its
lawsuit, further distinguishing the case from Raines.54
49
Id. at 1953.
50
Id.
51
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,
576 U.S. 787, 793 (2015).
52
Id. at 802.
53
Id. at 801–802 (emphasis in original) (internal quotation
marks and citations omitted).
54
Id.
17
Applying Raines and its progeny, several of our sister
circuits have also found that individual legislators lack stand-
ing in cases involving institutional injuries. In Alaska Legisla-
tive Council v. Babbitt, 181 F.3d 1333 (D.C. Cir. 1999), for
example, the D.C. Circuit held that the Alaska Legislative
Council and seventeen members of the Alaska State Legisla-
ture lacked standing to challenge a federal law that regulated
the taking of fish and wildlife on federal lands within the
state.55 Among other things, the plaintiffs alleged that the law
had “interfered with their state duties” and “nullified their leg-
islative prerogatives regarding fish and wildlife manage-
ment.”56 The Court held that these injuries were insufficient to
give the legislators Article III standing because, “[w]hile state
legislation or regulations in conflict with [a] federal statute or
federal regulations may be unenforceable . . . that type of in-
jury does not entitle individual legislators to seek a judicial
remedy.”57
Likewise, in Kerr v. Hickenlooper, 824 F.3d 1207 (10th
Cir. 2016), the Tenth Circuit held that a group of legislators
from the Colorado General Assembly lacked standing to chal-
lenge a provision of the Colorado Constitution that required
voter approval for certain tax increases.58 The Court held that
the injury alleged by the legislator-plaintiffs—interference
with their powers of taxation and appropriation—was institu-
tional because it was “based on [a] loss of legislative power
that necessarily impact[ed] all members of the General
55
Babbitt, 181 F.3d at 1335–36.
56
Id. at 1337.
57
Id. at 1338.
58
Kerr, 824 F.3d at 1211–12.
18
Assembly equally.”59 And the Court found that, unlike in Ari-
zona State Legislature, the plaintiffs in Kerr did not have
standing to assert such institutional injuries because the state
legislature had not authorized them to do so.60
This case is no different. As in Raines, Bethune-Hill,
Babbitt, and Kerr, the legislative injuries that the Senate Plain-
tiffs allege are “quintessentially ‘institutional.’”61 The Senate
Plaintiffs allege that the ban on fracking:
• “suspends law within the Commonwealth—a
power reposed exclusively in the General As-
sembly”;62
• “displaced and/or suspended the Common-
wealth’s comprehensive statutory scheme
within the Basin”;63
• “attempted to exercise legislative authority
exclusively vested in the General Assem-
bly”;64
• “wholly nullifies any present or future legis-
lative action purporting to adopt any laws in-
consistent with the prohibition”;65
59
Id. at 1215.
60
Id. at 1216.
61
JA0017.
62
JA0306.
63
Id.
64
JA0307.
65
Id.
19
• “deprives over five million citizens of the
Commonwealth residing within the Basin of
the right to be governed by laws enacted by
their duly-elected representatives”;66
• “significantly dilutes the right of citizens in
the Commonwealth . . . to choose their own
officers for governmental administration”;67
and
• “palpably and substantially diminishes the
legislative powers of the Senate Plaintiffs.”68
These are classic examples of institutional injuries because
they sound in a general loss of legislative power that is “widely
dispersed” and “necessarily damages all [members of the Gen-
eral Assembly] . . . equally.”69 In other words, the Senate
Plaintiffs “have alleged no injury to themselves as individu-
als”—only injury to the legislature and the commonwealth of
which they are a part.70 And just as in Raines, the Senate Plain-
tiffs have not been authorized to represent the interests of these
institutions in court. Under Pennsylvania law, the Attorney
General is the party responsible for representing the Common-
wealth in civil suits, not individual legislators.71 Nor has the
66
Id.
67
JA0308.
68
JA0315.
69
Raines, 521 U.S. at 821, 829.
70
Id. at 829.
71
See 71 Pa. Stat. § 732-204(c) (West 2022) (“The Attorney
General shall represent the Commonwealth and all
20
Pennsylvania General Assembly authorized the Senate Plain-
tiffs to represent it in this matter. At best, the Senate Plaintiffs
speak for the majority of the Pennsylvania Senate, which is
only one of two chambers of the General Assembly. That is
not enough to give them standing, because “[j]ust as individual
members lack standing to assert the institutional interests of a
legislature . . . a single [chamber] of a bicameral legislature
lacks capacity to assert interests belonging to the legislature as
a whole.”72
Plaintiffs-Appellants make several arguments in re-
sponse. For one, they argue that the legislative standing
caselaw upon which the District Court relied reflects prudential
concerns that are unmoored from the traditional requirements
of Article III. We do not think there is anything anomalous
about the rule that individual legislators lack standing to assert
institutional injuries, however. Instead, we think this rule
flows naturally from bedrock standing requirements, including
the requirement that plaintiffs have an injury that is particular-
ized to them, meaning one that affects them in a “personal and
individual way.”73 Like the Members of Congress in Raines,
the Senate Plaintiffs lack a particularized injury because the
ban on fracking affects every member of the General Assembly
equally and does not “single[] [them] out for specially
Commonwealth agencies . . . in any action brought by or against
the Commonwealth or its agencies.”).
72
Bethune-Hill, 139 S. Ct. at 1953–54.
73
Spokeo, 578 U.S. at 339 (quoting Lujan, 504 U.S. at 560 n.1).
21
unfavorable treatment.”74 The rule that individual legislators
cannot assert institutional injuries also follows from the princi-
ple that, in general, “[a] litigant must assert his or her own legal
rights and interests, and cannot rest a claim to relief on the legal
rights or interests of third parties.”75
In arguing to the contrary, Plaintiffs-Appellants are the
ones advancing a position unmoored from Article III. Under
their theory of standing, “any individual legislator would have
standing to challenge any federal statute or regulation . . . that,
under the Constitution’s Supremacy Clause, has a preemptive
effect on state lawmaking.”76 Article III does not sweep so
broadly.
Plaintiffs-Appellants also argue that Raines is inappli-
cable because it involved federal separation-of-powers con-
cerns that are absent in lawsuits brought by state officials. But
decisions following Raines have made clear that its reasoning
is not limited to cases involving federal parties. In Bethune-
74
Raines, 521 U.S. at 821; see also Babbitt, 181 F.3d at 1337(holding that the plaintiffs lacked standing because the injuries
they alleged were not “particularized to them”); Kerr, 824 F.3d
at 1216 (holding that the plaintiffs lacked a “personal stake in
the suit”) (internal quotation marks and citations omitted).
75
Penn. Psych. Soc. v. Green Spring Health Servs., Inc., 280
F.3d 278, 288 (3d Cir. 2002) (quoting Powers v. Ohio, 499
U.S. 400, 410 (1991)); see also Bethune-Hill, 139 S. Ct. at
1953 (describing a “mismatch” between the body seeking to
litigate and the body to which the allegedly diminished power
belonged).
76
Brief of Democratic State Senators and Bucks and Mont-
gomery Counties at 3 (emphasis in original).
22
Hill, for example, the Supreme Court relied on Raines in hold-
ing that a state legislative plaintiff—the Virginia House of Del-
egates—lacked standing to assert interests belonging to the
Virginia Legislature as a whole.77 And although the Court in
Arizona Independent Redistricting Commission found that the
Arizona Legislature had standing to sue, the distinction be-
tween state and federal parties was not central to its analysis.
Indeed, in holding that the Arizona legislature had standing as
an “institutional plaintiff asserting an institutional injury,” the
Court was explicitly applying the analytical framework from
Raines to a state dispute.78
Plaintiffs-Appellants also invoke the Supreme Court’s
1939 decision in Coleman v. Miller, 307 U.S. 433 (1939).
There, twenty-four members of the Kansas state legislature
sought a writ of mandamus in federal court after the legislature
ratified a proposed amendment to the U.S. Constitution.79 The
legislators claimed that the ratification was invalid because the
Lieutenant Governor had improperly cast the tiebreaking
vote.80 Among other things, the respondents argued that the
legislators lacked standing to pursue relief in federal court.81
Rejecting this argument, the Court found that the legislators
had standing because their votes, which had been “overridden
and virtually held for naught,” would have been sufficient to
defeat ratification if not for the Lieutenant Governor’s
77
Bethune-Hill, 139 S. Ct. at 1953–54.
78
Ariz. State Legislature, 576 U.S. at 802.
79
Coleman, 307 U.S. at 435–36.
80
Id.81
Id. at 437.
23
actions.82 The Supreme Court later explained that Coleman
stands “at most” for the narrow proposition that:
legislators whose votes would have been suffi-
cient to defeat (or enact) a specific legislative Act
have standing to sue if that legislative action goes
into effect (or does not go into effect), on the
ground that their votes have been completely
nullified.83
As the District Court rightly found, Coleman does not
help Plaintiffs-Appellants because they fail to identify a spe-
cific legislative act that would have passed (or been defeated)
but for the alleged usurpation of legislative power caused by
the Commission’s ban on fracking. Plaintiffs-Appellants point
to “Act 13,” a law passed by the General Assembly in 2012 to
regulate natural gas extraction in the Commonwealth.84 But
they fail to explain how the ban on fracking (or the moratorium
that preceded it) affected the passage of Act 13 in a way that
would give them standing under the vote nullification theory
endorsed in Coleman. And if Plaintiffs-Appellants are simply
claiming an interest in Act 13’s continued vitality, that is a gen-
eralized grievance that does not give them standing in federal
court.85
82
Id. at 438.
83
Raines, 521 U.S. at 823.
84
JA301.
85
See Russell v. DeJongh, 491 F.3d 130, 135 (3d Cir. 2007)
(“[O]nce a bill has become law, a legislator’s interest in seeing
that the law is followed is no different from a private citizen’s
interest in proper government.”).
24
Finally, Plaintiffs-Appellants point to several state court
decisions in Pennsylvania holding that individual legislators
have a legally protected interest in “forestalling the usurpation
of the state’s lawmaking power.”86 In Fumo v. City of Phila-
delphia, 972 A.2d 487, 502 (Pa. 2009), for example, the Su-
preme Court of Pennsylvania held that individual legislators
had standing in state court to pursue claims based on “the ef-
fectiveness of their legislative authority and their vote.” The
fact that a party has standing in state court does not mean that
they have standing in federal court, however. As the Seventh
Circuit recently clarified, Article III standing “limits the power
of federal courts and is a matter of federal law. It does not turn
on state law, which obviously cannot alter the scope of the fed-
eral judicial power.”87 We have likewise explained that, “even
if Pennsylvania state law would have afforded appellants
standing if they had brought [an] action in state court, we must
ensure that they satisfy the federal requirements for standing as
well.”88 To see that these requirements often differ, one must
look no further than the Fumo decision itself, which contrasted
Pennsylvania’s prudential standing doctrine with the constitu-
tional demands of Article III.89 Moreover, even if Fumo
showed that the Senate Plaintiffs have suffered an “invasion of
a legally protected interest” under Pennsylvania law, that is
only one part of the injury-in-fact requirement.90 To have
standing in federal court, the Senate Plaintiffs also need to
86
Plaintiffs-Appellants’ Opening Brief at 42.
87
Protect Our Parks, Inc. v. Chi. Park Dist., 971 F.2d 722,
730–31 (7th Cir. 2020) (Barrett, J.) (emphasis in original).
88
Goode v. City of Philadelphia, 539 F.3d 311, 321 (3d Cir.
2008).
89
Fumo, 972 A.2d at 500 n.5.
90
Spokeo, 578 U.S. at 339.
25
allege injuries that are concrete and particularized.91 Because
they fail to do so for the reasons we have just discussed, the
Senate Plaintiffs’ alleged legislative injuries do not give them
standing.92
B.
Plaintiffs-Appellants also argue that the Municipal
Plaintiffs have standing based on economic injuries that they
suffered, and are continuing to suffer, as a result of the ban.
This is Plaintiffs-Appellants’ most straightforward theory of
standing, because “financial harm is a classic and paradigmatic
91
Id.
92
To be clear, the fact that the individual legislators in this case
lack standing does not mean that the same will be true in other
cases. As the Tenth Circuit explained in Kerr, “[a]n individual
legislator certainly retains the ability to bring a suit to redress
a personal injury, as opposed to an institutional injury. For
example, if a particular subset of legislators was barred from
exercising their right to vote on bills, such an injury would
likely be sufficient to establish a personal injury.” Kerr, 824
F.3d at 1216 (emphasis added); see also Raines, 521 U.S. at
821 (suggesting a different outcome if the plaintiffs had been
“singled out for specially unfavorable treatment as opposed to
other Members of their respective bodies”). The bottom line is
that “[l]egislators, like other litigants in federal court, must sat-
isfy the jurisdictional prerequisites of Article III standing,”
DeJongh, 491 F.3d at 133, including the need for a “personal
stake in the dispute,” Raines, 521 U.S. at 380 (internal quota-
tion marks omitted).
26
form of injury in fact.”93 We nevertheless agree with the Dis-
trict Court that this theory of standing also fails because the
economic injuries the Municipal Plaintiffs allege are either too
old or too speculative to support the relief that they are seeking.
“Injury-in-fact is not Mount Everest,” and an “identifi-
able trifle of injury” will suffice.94 That said, to have an injury-
in-fact for standing purposes, a plaintiff must have an injury
that is “actual or imminent, not conjectural or hypothetical.”95
For this reason, we have explained that “[p]laintiffs do not al-
lege an injury-in-fact when they rely on a chain of contingen-
cies or mere speculation.”96 In Finkelman v. National Football
League, 810 F.3d 187 (3d Cir. 2016), for example, we consid-
ered whether a plaintiff had standing to sue the National Foot-
ball League (“NFL”) based on the theory that he paid a higher
price for Super Bowl tickets because the NFL restricted the
number of tickets it released to the public, driving up prices on
the resale market.97 Although this theory of standing appeared
promising “[a]t first blush,” it failed under closer examination
because the complicated economics of the resale market meant
that “while it might [have been] the case that the NFL’s with-
holding increased ticket prices on the resale market, it might
93
Cottrell v. Alcon Laby’s, 874 F.3d 154, 163 (3d Cir. 2017)
(cleaned up).
94
Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 294
(3d Cir. 2005) (internal quotation marks and citations omit-
ted).
95
Lujan, 504 U.S. at 560 (internal quotation marks and cita-
tions omitted).
96
Finkelman v. Nat’l Football League, 810 F.3d 187, 193 (3d
Cir. 2016) (citations and internal quotation marks omitted).
97
Id. at 200.
27
also [have been] the case that it had no effect.”98 We ultimately
found that the plaintiff lacked standing because we could “only
speculate” about the price effects of the NFL’s actions and
“speculation is not enough to sustain Article III standing.”99
Moreover, “a plaintiff must demonstrate standing sepa-
rately for each form of relief sought.”100 When a plaintiff seeks
retrospective (backward-looking) relief in the form of money
damages, they can establish standing through evidence of a
past injury.101 But when a plaintiff seeks prospective (forward-
looking) relief in the form of an injunction or a declaratory
judgment, they must show that they are “likely to suffer future
injury.”102 The future injury must also be “imminent,” mean-
ing that it is “certainly impending” rather than just merely
“possible.”103
In their Amended Complaint, Plaintiffs-Appellants al-
lege that, “[a]lthough [the] Municipal Plaintiffs’ low popula-
tion density and terrain renders them particularly well-suited
98
Id. (emphasis in original).
99
Id.
100
Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),
528 U.S. 167, 185 (2000).
101
See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210–
11 (1995).
102
McNair v. Synapse Grp. Inc, 672 F.3d 213, 223 (3d Cir.
2012) (emphasis added) (quoting City of Los Angeles v. Lyons,
461 U.S. 95, 105 (1983)); see also CMR D.N. Corp. v. City of
Philadelphia, 703 F.3d 612, 628 (3d Cir. 2013) (explaining that
declaratory relief is, by definition, “prospective in nature”).
103
Clapper, 568 U.S. at 409 (internal quotation marks and ci-
tations omitted) (emphasis omitted).
28
for natural gas exploration and extraction,” the ban on fracking
has excluded them “from participating in the economic devel-
opment made available to neighboring areas.”104 Between
2006 and 2017, for example, a single natural gas producer paid
over $1 billion in royalties to landowners in Susquehanna
County, which adjoins Plaintiff-Appellant Wayne County but
is located outside of the Basin. Plaintiffs-Appellants also al-
lege that before the Commission’s moratorium on natural gas
extraction in 2010, “countless landowners within the Basin had
negotiated and/or executed leases with natural gas producers”
that were later rendered valueless.105 For example, “a group of
landowners in Wayne County expended approximately
$750,000 in legal fees to negotiate a lease that was estimated
to yield over $187 million during its term, but as a result of the
Commission’s moratorium, the contract became ineffectual
and . . . was terminated.”106 Finally, Plaintiffs-Appellants al-
lege that, under Act 13, municipalities in which unconven-
tional natural gas wells are located have received sizable dis-
tributions from the Well Fund, a statewide fund comprised of
fees from the development of unconventional wells. In 2019,
for example, municipalities throughout Pennsylvania received
over $109 million in distributions, including $5.7 million to
Susquehanna County.
The District Court found these allegations insufficient
to give the Municipal Plaintiffs standing. The Court found that
the Municipal Plaintiffs have failed to allege that fracking
would likely occur within their borders but for the Commis-
sion’s ban and that the “theoretical possibility” of missed
104
JA0302.
105
JA0303.
106
Id.29
fracking opportunities does not give them standing.107 The
Court also found that the “single missed fracking opportunity”
cited in the Amended Complaint does not give the Municipal
Plaintiffs standing because that potential project occurred over
12 years ago and “obviously [does] not show that some twelve
years later, any of the Municipalities is suffering a current in-
jury.”108
On appeal, Plaintiffs-Appellants argue that the “single
missed fracking opportunity” in Wayne County is enough to
give them standing because they need only allege a “trifle of
injury.”109 But this argument overlooks the fact that Plaintiffs-
Appellants are seeking prospective rather than retrospective re-
lief.110 As a consequence, they cannot base their standing on
past injuries.111 The District Court was therefore correct to
conclude that while the missed fracking opportunity in Wayne
County might have given the Municipal Plaintiffs standing
twelve years ago, it does not do so today.
The only remaining question is whether the Municipal
Plaintiffs have sufficiently alleged the kind of ongoing or im-
minent economic harm needed to sustain their request for pro-
spective relief. Like the District Court, we think not. Although
the Municipal Plaintiffs have identified fracking projects that
are currently underway in neighboring counties, they have
107
JA0024.
108
Id.109
Plaintiffs-Appellants’ Opening Brief at 63 (quoting Bow-
man, 672 F.2d at 1145).
110
Specifically, Plaintiffs-Appellants are seeking a declaratory
judgment.
111
McNair, 672 F.3d at 223.
30
failed to identify any recent projects within their borders that
would have moved forward if not for the ban.112 The Munici-
pal Plaintiffs have also failed to identify any projects that
would be ready and able to proceed in the near future if the ban
is lifted.113 Instead, they have made only general allegations
about the suitability of their terrain and the presence of natural
gas reserves without mentioning “the viability of or actual in-
terest in extraction.”114 As one group of Defendants-Appellees
puts it, the Municipal Plaintiffs have failed to allege “that the
reserves within their borders could feasibly be extracted via
fracking, or that but for the [ban], a permit would have been
112
Perhaps recognizing this problem, Plaintiffs-Appellants ask
us to take judicial notice of a potential fracking project in
Wayne County that is the subject of a separate case in the
United States District Court for the Middle District of Pennsyl-
vania. But Plaintiffs-Appellants did not plead any facts about
this project in their Amended Complaint, and the Municipal
Plaintiffs did not file a Second Amended Complaint even after
the District Court gave them the opportunity to do so. We
“generally do not consider arguments raised for the first time
on appeal” and will not do so here given the multiple opportu-
nities Plaintiffs-Appellants had to raise this project in support
of their claim to standing. Orie v. Dist. Att’y Allegheny Cnty.,
946 F.3d 187, 195 (3d Cir. 2019) (internal quotation marks and
citations omitted).
113
See Ellison v. Am. Bd. of Orthopedic Surgery, 11 F.4th 200,
206 (3d Cir. 2021) (explaining that where a plaintiff has alleg-
edly been denied a benefit or opportunity, evidence that they
are “able and ready” to seek the benefit “lends concrete sub-
stance and imminence to an injury that would otherwise be
purely hypothetical.”).
114
JA0024.
31
issued and withstood likely legal challenges, [or] that fracking
would in fact occur, or that the fracking would result in actual
extraction of natural gas and [the] payment of fees into the
Well Fund.”115 This lack of detail is fatal to the Municipal
Plaintiffs’ standing, because it renders their economic injuries
“hypothetical” and “conjectural” rather than “actual or immi-
nent.”116
At most, the Municipal Plaintiffs have shown a possi-
bility of future economic injury through the loss of hypothetical
future fracking projects within their borders. But that is not
enough to give them standing, because “[a]llegations of possi-
ble future injury are not sufficient.”117 The Municipal Plain-
tiffs accordingly lack standing based on economic injuries, as
the District Court found.
C.
Finally, Plaintiffs-Appellants argue that both the Senate
and Municipal Plaintiffs have standing based on injuries they
115
Brief of Democratic State Senators and Bucks and Mont-
gomery Counties at 52.
116
Spokeo, 578 U.S. at 339; see also Lujan, 504 U.S. at 564(stating that “some day” intentions without “any description of
concrete plans” or “any specification of when the some day will
be” do not give rise to an actual or imminent injury for standing
purposes); MGM Resorts Int’l Glob. Gaming Develop., LLC v.
Malloy, 861 F.3d 40, 42–43 (2d Cir. 2017) (holding that MGM
lacked standing to challenge a Connecticut law because it
“failed to allege any specific plans to develop a casino in Con-
necticut,” rendering the alleged harm “too speculative to sup-
port Article III standing”).
117
Clapper, 568 U.S. at 409 (emphasis in original).
32
suffered as “trustees of [Pennsylvania’s] natural resources” un-
der the ERA.118 Although this is Plaintiffs-Appellants’ most
legally creative theory of standing, it too falls short.
Pennsylvania voters ratified the ERA in 1971 after dec-
ades of “virtually unrestrained exploitation” of the state’s nat-
ural resources led to “destructive and lasting consequences not
only for the environment but also for the citizens’ quality of
life.”119 The Amendment provides:
The people have a right to clean air, pure water,
and to the preservation of the natural, scenic, his-
toric and esthetic values of the environment.
Pennsylvania’s public natural resources are the
common property of all the people, including
generations yet to come. As trustee of these re-
sources, the Commonwealth shall conserve and
maintain them for the benefit of all the people.120
The first sentence of the ERA is a “prohibitory clause” that
limits the state’s ability to infringe on citizens’ right to clean
air, pure water, and the preservation of the environment.121
The second and third sentences create a public trust pursuant
to which Pennsylvania’s “[public] natural resources are the
corpus . . . , the Commonwealth is the trustee, and the people
are the named beneficiaries.”122
118
Plaintiffs-Appellants’ Opening Brief at 61–62.
119
Pa. Env’t Def. Found. v. Commonwealth, 161 A.3d 911,
918–19 (Pa. 2017) (“PEDF”).
120
PA. CONST. art. I, § 27.
121
PEDF, 161 A.3d at 931.
122
Id. at 931–32.
33
Plaintiffs-Appellants’ argument for standing under the
ERA proceeds in two parts. First, they argue that because the
Commonwealth’s trustee obligations extend to “all agencies
and entities of the Commonwealth government, both statewide
and local,” they are all trustees of Pennsylvania’s public natu-
ral resources under the ERA.123 Second, they argue that the
Commission’s ban on fracking has harmed them in their roles
as ERA trustees because it has “precluded [them] from exer-
cising their constitutionally enshrined fiduciary obliga-
tions.”124
We need not resolve the first issue, because even if we
assume that all of the Plaintiffs-Appellants are ERA trustees
under Pennsylvania law, they have failed to show that the ban
on fracking is causing them, or will imminently cause them, a
concrete injury-in-fact in connection with that role. Plaintiffs-
Appellants assert that “any attempt by a non-trustee to admin-
ister the Trust or take control of its corpus is a per se injury”
and “[g]iven that the Commission is not a trustee under the
ERA, its interference with the Trust’s administration is an in-
jury-in-fact.”125 Plaintiffs-Appellants offer no legal support
for these broad assertions, however, and they conflict with the
understanding that, “under Article III, an injury in law is not
an injury in fact.”126 In TransUnion LLC v. Ramirez, 141 S.
Ct. 2190 (2021), for example, the Supreme Court held that
thousands of class action plaintiffs lacked Article III standing
to sue a credit reporting agency under the Fair Credit Reporting
Act because the agency’s inclusion of inaccurate information
123
Id. at 932 n.23.
124
Plaintiffs-Appellants’ Opening Brief at 58–59.
125
Id. at 63.
126
TransUnion, 141 S. Ct. at 2205.
34
in the plaintiffs’ internal credit files—while a violation of the
Act—did not cause them concrete harm.127 In so holding, the
Court reiterated that, to be sufficiently concrete for Article III
purposes, a plaintiff’s injury must be “real, and not abstract.”128
The Supreme Court has also explained that a plaintiff cannot
“allege a bare procedural violation, divorced from any concrete
harm, and satisfy the injury-in-fact requirement.”129
That, in a nutshell, is the problem with Plaintiffs-Appel-
lants’ ERA trustee theory of standing: it complains of a bare
procedural violation divorced from any concrete harm. Plain-
tiffs-Appellants allege, for example, the ban on fracking has
“interfered with [their] management of the Trust.”130 But they
fail to explain what, exactly, the ban is preventing them from
doing. At their most specific, Plaintiffs-Appellants assert that,
as trustees, they may “bring and defend actions that impact the
Trust, and take reasonable steps to increase the value of the
Trust’s assets.”131 But tellingly, Plaintiffs-Appellants do not
allege any specific actions that they are actually trying to bring
or defend, or any “reasonable steps” that they are actually try-
ing to take as ERA trustees. As pled, these injuries are neither
concrete nor “actual or imminent”; they are wholly abstract.132
Perhaps understanding this, Plaintiffs-Appellants ad-
vance one final argument: that the ban on fracking harms the
public trust created by the ERA by decreasing fracking
127
Id. at 2210.
128
Id. at 2204 (listing cases).
129
Spokeo, 578 U.S. at 341.
130
JA0308.
131
JA0296.
132
Spokeo, 578 U.S. at 339.
35
revenues in Pennsylvania. The idea is that the corpus of the
trust includes not only the state’s public natural resources, in-
cluding its oil and gas reserves, but also “any funds derived
from the sale or lease of those resources.”133 Plaintiffs-Appel-
lants thus allege that by reducing fracking revenues, the ban
has “directly and substantially injured the Trust’s corpus.”134
As several environmental organizations explain in a
joint amicus brief, however, this argument fundamentally mis-
understands the ERA and would turn it “upside down” if ac-
cepted.135 Plaintiffs-Appellants are arguing that the ERA, a
state constitutional amendment intended to protect Pennsylva-
nia’s natural resources from exploitation by placing them in a
public trust, actually “requires the liquidation of public natural
resources for cash—that this actually improves the public
trust.”136 We disagree. The problem with this argument is that
it ignores the explicit purpose of the ERA and mistakes the
unique public trust it created for a run-of-the-mill financial
trust in which the trustees have a duty to maximize profits. The
Supreme Court of Pennsylvania has explained that the purpose
of the public trust created by the ERA is not to make money; it
is to “conserve and maintain” the state’s public natural re-
sources.137 To promote this purpose, the ERA “imposes two
basic duties on the Commonwealth as the trustee.”138 First,
“the Commonwealth has a duty to prohibit the degradation,
133
Plaintiffs-Appellants’ Opening Brief at 52.
134
JA0308.
135
Brief of Environmental Amici at 22.
136
Id. at 23.
137
PEDF, 161 A.3d at 933 n.26 (quoting PA. CONST. art. I, §
27).
138
Id. at 933.
36
diminution, and depletion of [Pennsylvania’s] public natural
resources, whether these harms might result from direct state
action or from the actions of private parties.”139 Second, “the
Commonwealth must act affirmatively via legislative action to
protect the environment.”140 Importantly, under the ERA, the
Commonwealth is not a “mere proprietor” that “deals at arms’
length with its citizens, measuring its gains by the balance
sheet profits and appreciation it realizes.”141 Instead, it is a “fi-
duciary, measuring its successes by the benefits it bestows
upon all citizens in their utilization of natural resources under
law.”142
Plaintiffs-Appellants nevertheless point to the fact that
under Pennsylvania caselaw, certain proceeds from natural gas
extraction “must remain in the trust and must be devoted to the
conservation and maintenance of [Pennsylvania’s] public nat-
ural resources.”143 But the fact that the ERA requires certain
fracking proceeds to remain in the trust does not mean that trus-
tees somehow have a duty to keep fracking. To the contrary,
the duty of loyalty requires trustees to “manage the corpus of
the trust so as to accomplish the trust’s purposes,” which here
is the conservation and maintenance of Pennsylvania’s public
natural resources.144 And although it is possible to conceive of
139
Id.
140
Id.
141
Id. at 932 (cleaned up).
142
Id. (emphasis added).
143
Plaintiffs-Appellants’ Opening Brief at 52 (quoting PEDF,
161 A.3d at 936).
144
PEDF, 161 A.3d at 932 (emphasis added) (citing Metzger
v. Lehigh Valley Tr. & Safe Deposit Co., 69 A. 1037, 1038
(1908)).
37
a situation where the sale of trust assets might be necessary to
advance the purposes of a conservation trust or save it from
insolvency, Plaintiffs-Appellants have not alleged that any-
thing like that is happening here.
When the nature of the public trust created by the ERA
is properly understood, it becomes clear that neither the trust
nor its corpus is being concretely harmed by the Commission’s
decision to ban fracking in the Basin. To the contrary, the ban
promotes the purposes of the trust and protects its corpus by
preventing Pennsylvania’s natural gas reserves, part of the
Commonwealth’s “public natural resources,” from being de-
pleted.145 Thus, even if Plaintiffs-Appellants were trustees of
Pennsylvania’s public natural resources under the ERA, they
have failed to show that the ban on fracking is causing them
harm in that role, let alone the kind of concrete injury-in-fact
required to give them standing in federal court. For this reason,
Plaintiffs-Appellants’ final theory of standing also fails.
IV.
Because we agree with the District Court that Plaintiffs-
Appellants lack standing to challenge the Commission’s ban
on fracking, we will affirm.
145
PA. CONST. art. I, § 27.
38