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 
2

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; 

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
3

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
4

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

_______________
5

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 PlaintiffsAppellants 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.
6

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). 
7

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.
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 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.
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 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.
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, PlaintiffsAppellants challenged the ban on fracking by suing the Commission in federal court. Several 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 Senators; 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) violated 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 Senate Republican Caucus.20

 Second, Plaintiffs-Appellants allege 

that the ban has precluded 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 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 PlaintiffsAppellants 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.
12

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 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 Cnty. Ct. 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 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 imminent, not conjectural or hypothetical.”31

 The plaintiff, as the 

party invoking federal jurisdiction, bears the 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. 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 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, it 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:

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 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 

“deprived [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. 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).
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 District 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 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 executive 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 unfavorable 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.
16

“cause[d] a type of institutional injury (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 political 

power, 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 challenge the Act in federal 

court 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. BethuneHill, 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 Citing 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.
17

holding, the Court noted that the Virginia Constitution allocated 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 invalidating a state law as unconstitutional inflicts a discrete, 

cognizable injury 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 Legislature as a whole 

had standing to challenge the constitutionality of a voter initiative that transferred its redistricting authority to an independent 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 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 Legislature had also obtained “authorizing 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.
18

Applying Raines and its progeny, several 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 Legislative 

Council 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 Among other things, the plaintiffs alleged that the law 

had “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 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 injury 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 challenge 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 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:

• “suspends law within the Commonwealth—a 

power reposed exclusively in the General Assembly”;

62

• “displaced and/or suspended the Commonwealth’s comprehensive statutory scheme 

within the Basin”;63

• “attempted to exercise legislative authority 

exclusively vested in the General Assembly”;64

• “wholly nullifies 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

• “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 General Assembly] . . . equally.”69

 In other words, the Senate 

Plaintiffs “have alleged no injury to themselves as individuals”—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 Attorney 

General 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 Pa. Stat. § 732-204(c) (West 2022) (“The Attorney 

General shall represent the Commonwealth and all 
21

Pennsylvania General Assembly authorized the Senate Plaintiffs 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 response. 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 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, 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 inapplicable because it involved 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 Bethune74 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 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 although 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 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.
24

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

had 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 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 federal 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 constitutional 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.
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 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 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 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 “identifiable trifle of injury” will suffice.94

 That said, to have an injuryin-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 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 

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 withholding 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 omitted).

95 Lujan, 504 U.S. at 560 (internal quotation marks and citations 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.
28

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 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 (forwardlooking) 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 their 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 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 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

 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 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 

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 allege that, under Act 13, municipalities in which unconventional natural gas wells are located have received sizable distributions 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 Commission’s ban and that the “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 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 injury.”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 PlaintiffsAppellants 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 today. 

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 Brief 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

failed 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 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 interest 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 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 

“generally do not consider arguments raised for the first time 

on appeal” and will not do so here given the multiple opportunities 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 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 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 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 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 Connecticut,” rendering the alleged harm “too speculative to support Article III standing”).

117 Clapper, 568 U.S. at 409 (emphasis in original).
33

suffered 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 The 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, including 

generations 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 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.
34

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 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. PlaintiffsAppellants assert that “any attempt by a non-trustee to administer 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 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 procedural 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 

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 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 advance 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 only 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 a

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

 Plaintiffs-Appellants are arguing that the ERA, a 

state 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 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 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 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.
37

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 “fiduciary, 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 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 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)).
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 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 depleted.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 PlaintiffsAppellants lack standing to challenge the Commission’s ban 

on fracking, we will affirm.

145 PA. CONST. art. I, § 27.