New York AG Challenges Delaware River Basin Fracking PlansJun 2, 2011 | Parker Waichman LLP
New York AG Files Lawsuit
New York Attorney General Eric Schneiderman has filed a lawsuit against the federal government over plans to allow hydraulic fracturing, or fracking, in the Delaware River Basin. The Basin provides water to several East Coast cities, including New York and Philadelphia.
Schneiderman's lawsuit charges that the federal government abandoned its legally required responsibility to assess the environmental and public health impacts of natural gas drilling in the Basin. The lawsuit names the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, the National Park Service, the Interior Department and the U.S. Environmental Protection Agency as defendants.
Notably absent from the attorney general's complaint is the Delaware River Basin Commission (DRBC), the agency charged with overseeing the Basin's water resources. In addition to the Army Corps of Engineers, the DRBC is made up of the governors of the states that are encompassed by the Basin - Delaware, Pennsylvania, New York and New Jersey.
Lawsuit Filed Under Federal NEP Act
According to a report in The New York Times, Schneiderman filed his lawsuit under the federal National Environmental Policy Act, which only applies to federal entities. It is not clear if the DRBC qualifies as a federal body, thus its omission as a named defendant. Schneiderman's lawsuit claims NEPA applies to "projects and programs entirely or partly financed, assisted, conducted, regulated or approved by federal agencies." It will be up to a court to decide if NEPA does, in fact, apply to this case.
According to a report from Newsinferno.com, Schneiderman sent the DRBC a letter in April warning it that his office would file suit unless an environmental review was conducted before it adopted new natural gas drilling regulations for the basin.
"The federal government has an obligation to undertake the necessary studies, and as I made clear last month, this office will compel it to do so," Schneiderman said in a statement. "The welfare of those living near the Delaware River Basin as well as the millions of New Yorkers who rely on its pure drinking water each day will not be ignored."
The DRBC is expected to adopt the new drilling regulations this summer. It is expected that doing so will set off a fracking boom in the Basin, which sets atop the natural gas-rich Marcellus shale. The commission estimates that its proposed regulations will result in 15,000 to 18,000 gas wells being drilled within the Basin, most of which are expected to be developed by fracking, according to the Newsinferno.com report.
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