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U.S. Wants New York Fracking Lawsuit Dismissed

Aug 3, 2011 | Parker Waichman LLP

Insisting that the New York attorney general has no business suing it over possible hydraulic fracturing in the Delaware River Basin, the U.S. government says it will ask a federal judge to dismiss the state's claim.    The fracking lawsuit, filed by New York Attorney General Eric Schneiderman in May, seeks to force the Delaware River Basin Commission (DRBC)  to conduct an environmental impact study from adopting new drilling regulations that would allow fracking in the Basin.

Schneiderman claims such a study is required by the National Environmental Policy Act.  He alleges fracking in the Basin, which supplies water to 17 million people living in East Coast cities, including Philadelphia and New York City, puts vital sources of drinking water at risk. The lawsuit cites “hundreds of violations of water pollution laws," associated with fracking in nearby Pennsylvania, including the April 19 blowout of a natural-gas well owned by Chesapeake Energy Corp. in Bradford County.  That accident spewed thousands of gallons of fracking fluid onto nearby land, some of which made it into a tributary of a creek that eventually flows into the Susquehanna River.

But in a letter to U.S. District Judge Nicholas Garaufis in Brooklyn, New York, Assistant U.S. Attorney Sandra Levy asserts the New York lawsuit has no standing because it is barred by sovereign immunity, a legal principle that protects the U.S. from lawsuits unless the federal government specifically waives immunity.  She further asserts that the claim is not "ripe" because the DRBC hasn't finished its review of proposed new drilling regulations.  Finally she calls the lawsuit’s claim that New York will be harmed by fracking in the Basin "conjectural and hypothetical, and not actual or imminent."

Once the DRBC does adopt new drilling regulations, it is estimated that between 15,000 to 18,000 natural gas wells could be drilled there, most of which are expected to be developed by fracking.

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