Judge Says Feds Can Try to Have New York Fracking Lawsuit Dismissed

A federal judge says the U.S. government can move to have a hydraulic fracturing lawsuit filed by the New York State Attorney General dismissed. The New York lawsuit, which was filed in May, seeks to stop fracking from commencing in the Delaware River Basin until an environmental impact study is completed.

As we’ve reported previously, the Delaware River Basin Commission (DRBC) is preparing to adopt new drilling regulations that would allow fracking in the environmentally sensitive area. 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.

The Basin, much of which sits atop the natural gas-rich Marcellus shale, encompasses parts of Delaware, Pennsylvania, New York and New Jersey and provides drinking water to 17 million people on the East Coast. It 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.

New York Attorney General Eric Schneiderman filed suit against the federal government in U.S. District Court in Brooklyn, claiming that the National Environmental Policy Act requires a full environmental review prior to the adoption of any new drilling regulations.
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. According to a report from Bloomberg News, two of 10 federal agencies sued by New York State — the National Park Service and the U.S. Fish and Wildlife Service — agree with Schneiderman and have called for a review of fracking in the watershed.

Earlier this week, we reported that the Justice Department had informed U.S. District Judge Nicholas G. Garaufis that it would seek dismissal of the New York lawsuit. According to Bloomberg, the judge said yesterday that the government may do so.

“There are constitutional issues,” Garaufis said. “It’s regulatory. It’s statutory. It’s quite a mix of arguments.”

Industry groups are supporting the government in its quest to have the lawsuit dismissed, Bloomberg said. 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. Court papers filed by trade groups contend the New York lawsuit ‘might shut down gas development in the Delaware River Basin “for many years to come.”

A separate lawsuit brought by the Delaware Riverkeeper Network that makes the same claims against U.S is also pending in Brooklyn, according to Bloomberg. Yesterday, Garaufis said it was likely that it 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.

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