Pennsylvania

Energy. Environment. Economy.

Judge to Rule on Whether New York Can Sue Over Fracking Regulations

Susan Phillips / StateImpact Pennsylvania

A drilling protest sign sits on the lawn of a home along the Delaware River.

A federal judge heard arguments today on whether or not New York state has the right to sue the U.S. Army Corps of Engineers and the Delaware River Basin Commission to force the agencies to do a full environmental impact study on shale gas drilling in the basin. New York state Attorney General Eric T. Schneiderman sued the DRBC in May, 2011, saying the agency needs to comply with the National Environmental Policy Act. Several months later, a coalition of environmental groups filed a similar suit.

The Delaware Riverkeeper, the National Parks Conservation Association and the New York based Riverkeeper also argued that the DRBC, which includes a commissioner from the Army Corps of Engineers is a federal agency, and must do an extensive analysis as part of their gas drilling rule-making process. The DRBC has proposed regulations for fracking in the Delaware River watershed, but the commissioners have yet to vote on the proposals. In the meantime, drilling is on hold in New York state, and parts of Northeastern Pennsylvania.

Bloomberg reports that the U.S. argued the Delaware River Basin Commission, a multi-state agency that includes a representative from the federal government, New York, Pennsylvania, New Jersey, and Delaware is not a federal agency.

Assistant U.S. Attorney Sandra Levy argued today in federal court in Brooklyn, New York, that the Environmental Protection Agency and other federal parties sued by the state don’t have control over how the commission regulates fracking.

“The federal defendants didn’t cause the rules to be proposed and can’t stop them from being issued,” Levy said. She also told U.S. District Judge Nicholas G. Garaufis that the DRBC doesn’t have to comply with U.S. laws that require a fuller environmental review because it isn’t a federal agency.

Industry groups are seeking to intervene in the case, on the side of the federal government. The DRBC has said in the past that they have done an extensive review, but could not afford to do the type of environmental analysis required under NEPA.  If Judge Garaufis rules in favor of the plaintiffs, the case could hold up gas drilling in the Delaware River watershed.

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