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Judge Gives Feds Go Ahead to Seek Dismissal of New York Fracking Lawsuit

Aug 11, 2011 | Parker Waichman LLP

The U.S government can move to have New York State’s lawsuit over hydraulic fracturing in the Delaware River Basin dismissed, a federal judge said yesterday.  The lawsuit, which was filed by New York Attorney General Eric Schneiderman, names 10 federal agencies as defendants, and seeks a wider review of fracking in the environmentally sensitive region before the Delaware River Basin Commission (DRBC) approves regulations that would allow the controversial drilling method there.

"There are constitutional issues,” U.S. District Judge Nicholas G. Garaufis, of Brooklyn, said. “It’s regulatory. It’s statutory. It’s quite a mix of arguments.”

A separate lawsuit brought by the Delaware Riverkeeper Network that makes the same claims against U.S, according to Bloomberg.   Garaufis also said it was likely that its claim will be consolidated with the New York lawsuit.

Damascus Citizens for Sustainability, an environmental group based across the border in Pennsylvania, also plans to file a similar lawsuit in the same court, Bloomberg said. 

Once the DRBC adopts new drilling regulations, it is estimated that as many as in 15,000 to 18,000 natural gas wells - most of which would use fracking - could be drilled within the Basin, which sets atop the Marcellus shale.  Fracking in the Basin is controversial, however, because of fears that such drilling will endanger the waterways that supply 17 million East Coast residents with water. Many New York City residents are especially concerned, as the Basin covers 58 percent of the land area of its watershed west of the Hudson River.  New York City has spent almost $1.5 billion to protect the drinking water it obtains from the watershed.

In May, Schneiderman filed suit against the federal government in U.S.  District Court in Brooklyn, claiming that the National Environmental Policy Act required a full environmental review prior to the adoption of any new drilling regulations.  According to Bloomberg, two of federal agencies named as defendants - the National Park Service and the U.S. Fish and Wildlife Service - support his claims and have urged a wider review of fracking in the Basin.

Industry trade groups, however, oppose the lawsuit, stating in court documents that litigation might shut down gas development in the Delaware River Basin “for many years to come.”   The American Petroleum Institute, the Independent Petroleum Association of America and the US Oil & Gas Association said they asked to intervene in the case because their members will be economically impacted by the outcome, Bloomberg said.

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