PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 2 1

- 2315

_______________

GENE YAW, Senator; LISA BAKER, Senator;

THE PENNSYLVANIA SENATE REPUBLICAN CAUCUS, in their Official Legislative Capaci ties 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 DELA WARE 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; SE NATOR JOHN KANE; SENATOR TIM KEARNEY; SENATOR KATIE MUTH; SENATOR JOHN SABATINA; SENATOR NIKIL SAVAL; SENATOR JUDY SCHWANK; SENATOR2 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 Capacities and as Trustees of the natural resources of the Commonwealth of Pennsylvania ; Damascus Township, In its Official Capacity and as Trustee of the Natural Resources of the

Commonwealth of Pennsylvania; Dyb erry 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)

Di strict 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

Jos h ua J. Voss

Samantha G. Zimmer3 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

Commi ssion

Joseph J. Khan Bucks County Law Department

55 East Court Street

, 5th Floor Doyles town, PA 18901 Counsel for Intervenor County of Bucks

Kacy C. Manahan [ARGUED] Delaware Riverkeeper Network4 925 Canal Street

, Suite 3701 Bristol, PA 19007 Counsel for Interveno r

s 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

_______________5 FUENTES

, Circuit Judge

.

In February 2021, the Delaware River Basin

Commission banned high

- volume hydraulic fracturing (commonly known as “fracking”) with in the Delaware River

Basin. The ban reflect ed 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 fact o 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

— fi led 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 vio lated 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 injur ies that Article III

demands

. In our view, t he state senators and the Senate Republican Caucus lack standing because the legislative injuries they allege affect the state legislature as a whol e, and

1 Joint Appendix (“JA”) 0371.

2 JA0305.6 under well

- established Supreme Court caselaw, “individual members lack standing to assert the institutional interests of a legislature.” 3 The municipalities lack standing beca use 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 Amend ment 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. Def

s. 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).7 Because Plaintiffs

- Appellants lack Article III standing to pursue th eir 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 ope ration 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 JA0328.8 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 with in the Basin

. The regulation provides: “ H igh 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 JA0370.9 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 reflect ed 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 :

C ontrolling 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 Formatio n , 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 JA0303.10 B.

Plaintiffs

- Appellants are Pennsylvania State Senators

Gene Yaw and Lisa Baker ; the Pennsylvania Senate Republican 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 su ing the Commis sion in federal court

. S everal additional parties then intervened as defendants , including : the Delaware Riverkeeper Network and Maya K. van Rossum, its Executive Director; a collection of Democratic Pennsylvania State Senat ors; and Bucks and Montgomery Counties

. In an Amended Complaint filed in

March 2021 , Plaintiffs

- Appellants allege that the ban : (1) exceeded the Commission’s authority under the Compact; (2) violate d the Takings Clause of the United States Constitution ; (3) unlawfully exercise d the power of eminent domain ; and (4)

violate d the Constitution’s guarantee of a republican form of
government.

Plaintiffs

- Appellants a llege several injuries stemming

from th e ban

. First, they allege that the ban has “palpably and substantially diminished the legislative powers ” of the “ Senate

Plaintiffs”

— the two Pennsylvania s tate s enators and the Senate Republican Caucus. 20 Second, Plaintiffs

- Appellants allege

that the ban has preclude d the “ Municipal Plaintiffs ”

— the Pennsylvania towns and counties within the Basin

— from participating in fracking

- related economic development “made

19 Carbon County was also a plaintiff below but is not a party to this appeal.

20 JA0315.11 available to neighboring areas.” 21 Finally, Plaintiffs

- Appellants allege that the ban has interfere d with their ability to carry out their fiduciary duties as trustees of Pennsylvania’s pub lic

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 lack ed standing to pursue their claims in federal

court

. The District Court ag reed, 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 C omplaint ; (2 ) the Senate Plaintiffs lack standing

under the ERA because they are not ERA trustees ; and (3) even if the Senate Plain tiffs we re ERA trustees , they h ave 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 foun d 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 JA00 16

.12 and (3) the Municipal Plaintiff s 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 n evertheless 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, howe ver, 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 challenged on the basis of the pleadings, we accept as true all material allegations in the complaint, and

. . . construe the complaint 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 Baldwin v. Univ. of Pitt

. Med. Ctr. , 636 F.3d 69, 74 (3d Cir. 2011)).

26 Id . (quoting FOCUS v. Allegheny C n ty. C t. of Common

Pleas , 75 F.3d 834, 838 (3d Cir. 1996)).13 (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 es tablish

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 t hree elements,” a plaintiff must show an “invasion of a legally protected interest” that is both “concrete and particularized

, ” and “actual or imminent, not conjectural or hypothetical.” 31 The plaintiff , as the party invoking federal jurisdiction, bears t he burden of establishing standing and must “clearly

. . . allege facts demonstrating 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. C ONST . 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 citations omitted)

. 31 Id . at 339 (quoting Lujan , 504 U.S. at 560).

32 Id . at 338 (citations and internal quotation marks omitted).14 redress for a legal wrong.” 33 And in so doing, i t limits the power of federal courts themselves. It “serves to prevent the judicial process from being used to usurp the powers of the political branches” and “confines the federal courts to a properly judicial role.” 34 As the Supreme Court recently explained, under Article III :

f ederal 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 exercisegeneral legal oversight of the Legislative and Executive Branches, or of private entities. And federal 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 “deprive d [them] of their lawmaking authority relative to millions of Pennsylvanians residing within the 6,000 square miles

33 Id . (citing Valley Forge Christian Coll

. v. Am s

. 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).15 of Sovereign territory subsumed by the Basin and any legislation, now or in the future, on this subject has been nullified.” 36

As the Dist rict Court found, however, this argument runs headlong into the well

- established principle that individual legislators lack standing to assert institutional injuries belonging 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 certain tax and spending measures after they were passed by Congress and signed into l aw

. 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, andalter the balance of power between the legislative and executive branches of the federal government. 38 The District Court

found t hat 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 Co urt. 40 The Court noted thatthe plaintiffs “[had] not been singled out for specially unfavorable treatment as opposed to other Members of their respective

bodies.” 41 Instead, the plaintiffs had alleged that the Act

36 Plaintiffs

- Appellants’ Opening Br ief at 42.

37 Raines , 521 U.S. at 814.

38 Id . at 816.

39 Id

. 40 Id . at 813

– 14.

41 Id . at 821.16 “cause[d] a type of institutional injur y (the diminution of legislative 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 politicalpower, not loss of any private right, which would make the injury more concrete.” 44 Overall, the Court found that the plaintiffs lacked Article III standing to chall enge the Act in federalcourt because they “alleged no injury to themselves as individuals

. . . [and] the institutional injury they allege[d] [was] wholly abstract and widely dispersed.” 45 The Court also “attach[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 th at the state legislature had passed. 47 Citing Raines , the Court held that “[j]ust as individual members lack standing to a ssert 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

– 54.17holding, the Court noted that the Virginia Constitution allocated redis tricting authority to the “General Assembly,” of which “the House constitute[d] only a part .” 49 The Court alsopointed out that it “ha[d] never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable inju ry on each organ of government that participated in the law’s passage.” 50

By contrast, in Arizona State Legislature v. Arizona Independent Redistricting Commission , 576 U.S. 787 (2015), the Supreme Court held that the Arizona L egislature as a wholehad standing to challenge the constitutionality of a voter initiative that transferred its redistricting authority to an independent redistricting commission. 51 The Cour t noted that unlike the Members of Congress in Raines , the Arizona L egislature

“ [was] an institutional plaintiff asserting institutional inju ry.” 52 The problem in Raines , the Court explained, was that the plaintiffs were “ individual Members of Congress” who could not“tenably claim a personal stake in the suit” because the institutional injury at issue “scarcely zeroed in on any individual

Member.” 53 The Arizona L egislature had also obtained “authorizing votes in both of its chambers” before initiating its

lawsuit

, further distinguish ing 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

.18 Applying Raines and its progeny , s everal of our sister

circuits have also found that individual legislators lack standing in cases involving institutional injuries

. In Alaska Legislative Council v. Babbitt , 181 F.3d 1333 (D.C. Cir. 1999), for example, the D.C. Circuit held that the Alaska LegislativeCouncil and seventeen members of the Alaska State Legislature lacked standing to challenge a federal law that regulated the taking of fish and wildlife on federal lands within the

state. 55 Amo ng other things, the plaintiffs alleged that the lawhad “interfered with their state duties” and “nullified their legislative prerogatives regarding fish and wildlife management.” 56 The Court held that these injuries were insufficient to give the legisla tors 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 injury does not entitle individual legislators to seek a judicial remedy.” 57

Likewise, i n Kerr v. Hickenlooper , 824 F.3 d 1207 (10th Cir. 2016), the Tenth Circuit held that a g roup of legislatorsfrom the Colorado General Assembly lacked standing to challenge a provision of the Colorado Constitution that required voter approval for certain tax increases. 58 The Court held that

the injur y a lleged by the le gislator

- plaintiffs

— interference

with the ir powers of taxation and appropriation

— w as institutional 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

– 12.19 Assembly equally.” 59 And the Court found that, unlike in Arizona 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 Plaintiffs allege are “quintessentially ‘institutional

. ’ ” 61 The Senate

Plaintiffs allege that the ban on fracking :

• “suspend s law within the Commonwealth

— apower reposed exclusively in the General Assembly ” ; 62

• “displace d and/or suspend ed the Commonwealth’s comprehensive statutory scheme

within the Basin ”; 63

• “ attempt ed to exercise legislative authorityexclusively vested in the General Assembly ”; 64

• “wholly nullifie s any present or future legislative action purporting to adopt any laws inconsistent with the prohibition ”; 65

59 Id . at 1215

. 60 Id . at 1216.

61 JA0017.

62 JA0306.

63 Id

. 64 JA0307.

65 Id

.20 • “deprive s 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 dilute s the right of citizens in

the Commonwealth

. . . to choose their own officers for governmental administration ”; 67

and

• “palpably and substantially diminishe s 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 damage s all [members of the General Assembly]

. . . equally.” 69 In other words, the SenatePlaintiffs “have alleged no injury to themselves as individua ls”

— only injury to the legislature and the commonwealth of which they are a part. 70 And just as in Raines , the Senate Plaintiffs have not been authorized to represent the interests of these

institutions in court. Under Pennsylvania law, the AttorneyGeneral is the party responsible for representing the Commonwealth 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 P a. Stat. § 732

- 204(c) (West 2022) (“The Attorney General shall represent the Commonwealth and all21 Pennsylvania General Assembly authorized the Senate Plaintiffs to represent it in this matter. At best

, the Senate Plain tiffs speak for the majority of the Pennsylvania Senate, which is only one of two chamber s 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 ma ke several arguments in response. For one, t hey argue that the legislative standing

caselaw upon which the District Court relied reflect s 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 thi s rule flows naturally from bedrock standing requirements

, including the requirement that plaintiffs have a n injury that is particularized 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)

.22 unfavorable treatment.” 74 The rule that individual legislators cannot assert institutional injuries also follows from the principle that, i n 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 th ird 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 inapplicable because it involve d federal separation

- of

- powers concerns 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 ; s ee 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)) ; s ee 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 Montgomery Counties at 3 ( emphasis in original).23 Hill , for example, the Supreme Court relied on Raines in holding that a state legislative plaintiff

— the Virginia House of Delegates

— lacked standing to assert interests belonging to the Virginia Legislature as a whole

. 77 And a lthough the Court in Arizona Independent Redistricting Commission found that the

Arizona Legislature had standing to sue

, the distinction between state and federal parties was not central to its analysis. Indeed, in holding that the Arizona l egislature ha d 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. Cons titution. 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 Ari z. State Legislature , 576 U.S. at 802.

79 Coleman

, 307 U.S. at 435

– 36.

80 Id

. 81 Id . at 437.24 acti ons. 82 The Supreme Court later explained that Coleman stands “at most” for the narrow proposition that :

legislators whose votes would have been sufficient 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 specific 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 generalized grievance that does not give them standing in fe deral

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.”).25 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 P hiladelphia , 972 A.2d 487, 502 (Pa. 2009), for example, the Supreme Court of Pennsylvania held that individual legislators

ha d standing in state court to pursue claims based on “the effectiveness 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 recentl y clarified, Article III standing “limits the power

of federal courts and is a matter of federal law. It does not turnon state law, which obviously cannot alter the scope of the federal judicial power.” 87 We have likewise explained that

, “even if Pennsy lvania 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 furth er than the Fumo decision itself, which contrast edPennsylvania’s prudential standing doctrine with the constitutional demands of Article III. 89 Moreover, even if Fumo

show ed th at 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 Br ief 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 Phila delphia , 539 F.3d 311, 321 (3d Cir. 2008).

89 Fumo , 972 A.2d at 500 n.5.

90 Spokeo , 578 U.S. at 339.26 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 o n economic injuries that the y 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 per sonal 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]egisl ators, like other litigants in federal court, must satisfy 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 quotation marks omitted).27 form of injury in fact.” 93 We nevertheless agree with the District Court that this theory of standing also fail s 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 “identifiable trifle of injury” will suffice. 94 That said , to have an injury

in

- fact for standing purposes, a plaintiff must hav e an injury

that is “actual or imminent, not conjectural or hypothetical.” 95
For this reason, we have explained that “[p]laintiffs do not allege an injury

- in

- fact when they rely on a chain of contingencies or mere speculation.” 96 In Finkelman v. National Football League , 810 F.3d 187 (3d Cir. 2016), for example, we considered whether a plaintiff had standing to sue the National Football League ( “ NFL ” ) based on the theory that he paid a higher price for Super Bowl tickets because the NFL restricted the

num ber 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 withholding increased ticket prices on the resale market, it might

93 Cottrell v. Alcon Lab

y’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 omitted).

95 Lujan , 504 U.S. at 560 (internal quotation mark s and citations omitted).

96 Finkelman v. Nat’l Football League , 810 F.3d 187, 193 (3d Cir. 2016) (citations and internal quotation mark s omitted).

97 Id . at 200.28 also [have been] the case that it had no effe ct.” 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 standi ng separately 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,” meaning that it is “ certainly impending ” rather than just merely

“ possible .” 103

In the ir Amended Complaint, Plaintiffs

- Appellants allege that

, “[a]lthough [the] Municipal Plaintiffs’ low population 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 L os Angeles v. Lyons

, 461 U.S. 95, 105 (1983)); see also CMR D.N. Corp. v. City of

Phila delphia , 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 citations omitted) (emphasis omitted ).29 for natural gas exploration and extraction,” the ban on fracking has excluded them “from participating in the economic development made available to neighboring areas.” 104 B etween
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 a lso allege 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

l andowners 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 termin ated.” 106 Finally, Plaintiffs

- Appellants allege tha t

, under Act 13, municipalities in which unconventional natural gas wells are located have receive d sizable distributions from the Well Fund, a statewide fund comprised of fees from the development of unco nventional 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 b orders but for the Commission’s ban and t hat t he “theoretical possibility” of missed

104 JA0302.

105 JA0303.

106 Id

.30 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 tha t potential project occurred over 12 years ago and “obviously [does] not show that some twelveyears later, any of the Municipalities is suffering a current injury.” 108

On appeal, Plaintiffs

- Appellants argue that the “single missed fracking opportunity” i n 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 relief

. 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 toda y

.

The only remaining question is whether the Municipal

Plaintiffs have sufficiently alleged the kind of ongoing or imminent economic harm needed to sustain their request for prospective 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 Br ief at 63 (quoting Bowman , 672 F.2d at 1145).

110 Specifically, Plaintiffs

- Appellants are seeking a declaratory judgment.

111 McNair , 672 F.3d at 223

.31 fail ed to identify any recent projects within their borders that

would have moved forward if not for the ban. 112 The Municipal Plaintiffs have also failed to i dentify any projects that would be ready and able to proceed in the near future if the ban

is lifte d

. 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 interest in extraction.” 114 As one group of Defendants

- Appellees
put s it, the Municipal Plaintiffs have fail ed 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 C ourt for the Middle District of Pennsylvania. 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

“ g enerally do not consider arguments raised for the first timeon appeal” and will not do so here given the multiple opportunities Plaintiffs

- Appellants had to raise this project in support

o f their claim to standing. Orie v. Dist. Att’y Allegheny C n ty

. , 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 whe re a pl aintiff has allegedly been denied a benefit or opportunity, evidence that they are “able and ready” to seek the benefit “lends concrete substance and imminence to an injury that would otherwise be purely hypothetical

. ”).

114 JA0024.32 issued and withstood likely legal challenges, [or] that fracking would in fact occur, or that the fracking wo uld 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 “ac tual or imminent.” 116

At most, the Municipal Plaintiffs have shown a possibility 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 possible future injury are not sufficient .” 117 The Municipal Plaintiffs 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 Montgomery 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 d ay 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

“fail ed to allege any specific plans to develop a casino in Connecticut,” rendering the alleged harm “too speculative to support Article III standing”)

. 117 Clapper , 568 U.S. at 409 (emphasis in original ).33suffered as “trustees of [Pennsylvania’s] natural resources” under 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 decades of “virtually unrestrained exploitation” of the state’s natural resources led to “destructive and lasting consequences not only for the environment but also for the citizens’ quality of

life.” 119 T he Amendment provides:

The people have a right to clean air, pure water,and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, i ncludinggenerations yet to come. As trustee of these resources, 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 t he trustee, and the people

are the named beneficiaries.” 122

118 Plaintiffs

- Appellants’ Opening Br ief at 61

– 62.

119 Pa. Env’t Def. Found. v. Commonwealth , 161 A.3d 911,

918

– 19 (Pa. 2017) (“ PEDF” ).

120 P A

. C ONST

. art. I, § 27.

121 PEDF , 161 A.3d at 931.

122 Id . at 931

– 32.34 Plaintiffs

- Appellants ’ arg ument 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 th e Commonwealth government, both statewideand local,” they are all trustees of Pennsylvania’s public natural 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 exercising their constitutionally enshrined fiduciary obligations

. ” 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 administe r the Trust or take control of its corpus is a per se injury” and “[g]iven that the Commission is not a trustee under theERA, its interference with the Trust’s administration is an injury

- 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

.35 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 pro cedural violation, divorced from any concrete harm, and satisfy the injury

- in

- fact requirement.” 129

That, in a nutshell, is the problem with Plaintiffs

- Appellants’ ERA trustee theory of standing: it complains of a bare procedural violation divorced from any concrete harm. Plaintiffs

- 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

do ing. 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

a llege any specific actions that they are actually tr ying to bring or defend, or any “reasonable steps” that they are actually trying 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 advanc e 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 339.36 revenues in Pennsylvania. The idea is that the corpus of the

trust includes not onl y the state’s public natural resources, including its oil and gas reserves, but also “any funds derived

from the sale or lease of those resources.” 133 Plaintiffs

- Appellants 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 ajoint amicus brief, however, this argument fundamentally misunderstands the ERA and would turn it “upside down” if accepted. 135 Plaintiffs

- Appellants are arg uing that the ERA, astate constitutional amendment intended to protect Pennsylvania’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 improve s 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 t he purpose of the public trust created by the ERA is not to make money; it

is to “conserve and maintain” the state’s public natur al resources. 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 Br ief 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 P A

. C ONST . art. I, § 27).

138 Id

. at 933.37 diminution, and depletion of [Pennsylvania’s] public natural resources, whe ther 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 “fiduciary , measuring its successes by the benefit s 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

cons erv ation and maintenance of [Pennsylvania’s] public natural resources.” 143 But the fact that the ERA requires certain fracking proceeds to remain in the trust does not mean that trustees somehow have a duty to keep fracking. To the contrary, the duty of loyalty requir es 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)).38 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 anything like that is happening here.

When the nature of the public trust created by the ERA is proper ly 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 P ennsylvania’s natural gas reserves, part of theCommonwealth’s “public natural resources,” from being deplete d. 145 Thus, even if Plaintiffs

- Appellants we re trustees of Pennsylvania’s public natural resources under the ERA, they

have failed to sh ow 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 P A

. C ONST . art. I, § 27

.