Feds Seek to Block New York Fracking Lawsuit

The federal government is challenging a lawsuit filed by the New York Attorney General that seeks to block natural gas drilling via hydraulic fracturing from commencing in the Delaware River Basin. According to a Bloomberg News report, the U.S. is challenging the fracking lawsuit on grounds that the state can’t prove injury and doesn’t have the right to sue federal agencies.

The Delaware River Basin, much of which sits atop the natural gas-rich Marcellus shale, encompasses parts of Delaware, Pennsylvania, New York and New Jersey. It is regulated by the Delaware River Basin Commission (DRBC), a body whose voting members include the governors of Delaware, New Jersey, New York and Pennsylvania and the US Army Corps of Engineers. The Basin supplies water to more than 17 million people living in East Coast cities, including Philadelphia and New York City. The Basin covers 58 percent of the land area of New York City’s watershed west of the Hudson River, and the city has spent almost $1.5 billion to protect the drinking water it obtains from the watershed.

As we’ve reported previously, the DRBC is preparing to adopt new drilling regulations that would allow fracking in the Basin. 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.

In May, New York Attorney General Eric Schneiderman filed suit against the federal government in order to force a full environmental impact study of DRBC’s proposed regulations, asserting such a study was required by the National Environmental Policy Act. Schneiderman further called for this review to include an evaluation of the cumulative impacts of widespread fracking within the Basin as well as the alternative of not authorizing natural gas development within the portion of the Basin that includes New York City’s West-of-Hudson watershed.

“Before any decisions on drilling are made, it is our responsibility to follow the facts and understand the public health and safety effects posed by potential natural gas development,” said Attorney General Schneiderman said in a statement announcing the lawsuit. “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. 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.”

In a letter to U.S. District Judge Nicholas Garaufis in Brooklyn, New York, Assistant U.S. Attorney Sandra Levy says the government will seek dismissal of the lawsuit on the grounds that complaint is “barred by well-settled principles of sovereign immunity.” That principle protects the U.S from lawsuits unless it waives immunity, Bloomberg said.

The letter also calls New York’s claim that it will be harmed by fracking in the Delaware River Basin “conjectural and hypothetical, and not actual or imminent. Finally, Levy states that that claim is not “ripe” because the DRBC has not completed its review.

In fracking, a cocktail of water, sand, and chemicals is injected into the ground at high pressure to shake gas and oil deposits loose. Opponents of fracking are concerned that this type of natural gas drilling could lead to pollution of vital drinking water sources, either through the release of naturally-occurring hazardous substances or as a result of spills or leaks involving fracking fluid or fracking wastewater.

The New York Attorney General’s 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.