Federal judge dismisses NY state lawsuit on water, fracturing

A federal judge in Brooklyn dismissed a lawsuit filed by New York Atty. Gen. Eric T. Schneiderman seeking a court-ordered comprehensive environmental analysis before the Delaware River Basin Commission (DRBC) issues anticipated regulations that would cover hydraulic fracturing in the watershed.

US District Judge Nicholas Garaufis, Eastern District of New York, ruled Sept. 24 in favor of the US Army Corps of Engineers and the US Environmental Protection Agency, both of which wanted the case dismissed. Garaufis cited procedural reasons for dismissing the lawsuit, filed last year.

“The harms that plaintiffs ultimately are concerned about are speculative, and rely on a chain of inferences that may never come to pass,” Garaufis said. “Plaintiffs appear to believe that, if defendants are not forced to comply with NEPA [National Environmental Policy Act] now, their interests will be placed at risk immediately. But that is not the case. The courts will be available if and when the DRBC adopts final regulations permitting natural gas development.”

DRBC was formed in a federal-interstate compact in 1961 by President John F. Kennedy and the governors of the four basin states forming the watershed of the Delaware River: Delaware, New Jersey, New York, and Pennsylvania.

Responsible for water quality in the watershed that supplies drinking water to the four states, DRBC issued draft gas exploration regulations in 2010 followed by revisions in 2011. The Marcellus shale underlies about 36% of the river basin (OGJ, Oct. 6, 2008, p. 50).

Schneiderman’s office issued a statement that the ruling “left the door open for legal action on the merits of our case at a later date.”

The Delaware Riverkeeper Network also was a plaintiff. Other environmental groups intervened in the case, supporting Schneiderman’s litigation.

DRBC is one of two interstate commissions involved in planning and development in the Marcellus shale area. The other is the Susquehanna River Basin Commission, a compact formed by the federal government and the states of New York, Pennsylvania, and Maryland.

At this writing, New York state officials were contemplating whether to relax a ban on high-volume fracing in certain areas of the state.

The New York Times in a June 13 article quoted sources close to Gov. Andrew Cuomo saying the state might pursue a plan “to limit the practice to several struggling counties along the Pennsylvania border, only in towns that approve the technology.”

The state was expected to issue a final supplemental generic environmental impact statement (OGJ, Aug. 6, 2012, p. 32).

Contact Paula Dittrick at paulad@ogjonline.com.

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