Conservative Legal Group Challenges Lawsuit Against DRBC

On Thurs­day we wrote about Philadel­phia City Coun­cil vot­ing to join a law­suit against the U.S. Army Corps of Engi­neers, which rep­re­sent the Delaware River Basin Com­mis­sion. The law­suit, filed by the New York Attor­ney Gen­eral and sev­eral envi­ron­men­tal groups seeks to pre­vent the DRBC from insti­tut­ing any new nat­ural gas drilling rules before con­duct­ing an envi­ron­men­tal impact study.

Now a con­ser­v­a­tive legal orga­ni­za­tion in Wash­ing­ton, D.C. says the law­suit is an abuse of the National Envi­ron­men­tal Pol­icy Act. NEPA is the fed­eral statute cited by groups who filed suit. The authors of the paper, pub­lished by the Wash­ing­ton Legal Foun­da­tion say the 1969 law needs updating.

Over the past 50 years, the reach of NEPA has extended well beyond its ini­tial pur­pose of ensur­ing that mission-oriented agen­cies such as the Depart­ment of Trans­porta­tion and the Army Corps of Engi­neers take a “hard look” at the envi­ron­men­tal effects of their projects (high­ways, dams, etc.) and iden­ti­fy­ing oppor­tu­ni­ties to mit­i­gate those effects before project approval.  With each pass­ing year, lit­i­gants find cre­ative new ways of using NEPA to block projects they don’t like even when such oppo­si­tion clashes with a national objec­tive.  Such is the case in State of New York v. Army Corps of Engi­neers, et al., CV-11–2599 (E.D.N.Y.), where the plaintiff’s use of NEPA runs counter to the national objec­tives of energy secu­rity and pro­tec­tion against cli­mate change.

The Delaware River Basin Com­mis­sion is expected to take up its pro­posed rules at a meet­ing on Novem­ber 21.