NY Attorney General Sues the Federal Government Over Fracking

In an attempt to stop Marcellus Shale drilling in New York by using the court system, NY Attorney General Eric T. Schneiderman announced on Tuesday that he is suing the federal government “to commit to a full environmental review of proposed regulations that would allow natural gas drilling – including the potentially harmful "fracking" technique – in the Delaware River Basin.” AG Schneiderman made his initial threat last month (see MDN’s coverage here). The AG’s announcement seems timed to coincide with a hearing set for today by the Delaware River Basin Commission to consider an application to withdraw water for drilling purposes.

The press statement from the AG’s office (full text below) contains unsubstantiated allegations that fracking poses risks and threats to the environment—the same recitation of inaccurate claims we’ve heard time and again from those who seek an outright ban on gas drilling. It also presumes it is the federal government’s role to regulate drilling—which under current law, it is not. Those who oppose drilling seek to regulate it using the “back door” of the Safe Drinking Water Act (SDWA), the National Environmental Policy Act (NEPA) and other federal laws. This lawsuit seeks to push a federal takeover of drilling by regulating and controlling it at the federal level.

Press release from the Attorney General’s website:

Attorney General Eric T. Schneiderman announced he will file a lawsuit today against the federal government for its failure to commit to a full environmental review of proposed regulations that would allow natural gas drilling – including the potentially harmful "fracking" technique – in the Delaware River Basin.  Last month, the Attorney General notified the federal government that if it did not commit to conducting an environmental review before the regulations authorizing gas drilling are finalized, he would take legal action to compel such a study.

“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,” Attorney General Schneiderman said. “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 April, just one day before a blowout at a Pennsylvania natural gas drilling site caused gallons of chemical-laced water to spill over neighboring land and into a stream, the Attorney General demanded that the federal government comply with the National Environmental Policy Act (NEPA). The law requires federal agencies to conduct a full review of actions that may cause significant environmental impacts.

Despite the legal requirement, the Delaware River Basin Commission (DRBC) – with the approval of its supporting federal agencies – proposed regulations allowing natural gas development in the Basin without undertaking any such review. Represented by U.S. Army Corps of Engineers Brigadier General Peter A. DeLuca, the involved federal agencies include the Army Corps, the National Park Service, the U.S. Fish and Wildlife Service and the Environmental Protection Agency.

Schneiderman called on the federal government to comply with its NEPA obligations by suspending its consideration of the proposed regulations and undertaking a full review of all public health and safety risks posed by natural gas development in the Basin.  At that time, 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.

While the federal agencies determined that natural gas drilling in the Basin would potentially result in significant environmental impacts and that the study of those impacts should be performed, the DRBC’s lead agency, the U.S. Army Corps of Engineers, responded last week and made clear that it and the other member agencies would make no such commitment. The determination undermines the NEPA requirement.

As a result, Schneiderman announced today that he is filing a lawsuit in federal District Court in Brooklyn, where General DeLuca’s office is located, to compel an environmental review before regulations authorizing gas drilling are finalized.

The proposed natural gas development regulations allow high-volume hydraulic fracturing combined with horizontal drilling (a technique commonly referred to as “fracking”) – within the Basin. Unless studied and subject to strict controls, fracking poses risks to the environment, health, and communities, including the withdrawal of large volumes of water from creeks and streams, potential contamination of drinking water supplies, waste generation, increased noise, dust and air pollution, and potential harms to community infrastructure and character from increased industrial activity. Due to the potential for significant impacts from gas fracking within the Basin, the relevant federal agencies are obligated to comply with NEPA by performing a full review of the impact of the DRBC proposed natural gas development regulations. 

The Delaware River Basin includes a portion of the New York City watershed and parts of Broome, Chenango, Delaware, Schoharie, Green, Ulster, Orange and Sullivan Counties. The federally designated Upper Delaware Scenic and Recreational River (and its tributaries), is a nationally significant fishing, boating and recreational destination. In addition, roughly 58 percent of the land area of New York City’s West-of-Hudson watershed is within the Basin.   That portion of the watershed provides most of the drinking water used by over nine million New York residents and visitors. 

The DRBC estimates that its proposed regulations would allow 15,000 to 18,000 gas wells to be drilled within the Basin, most of which are expected to be developed by fracking. The regulations were proposed without first conducting an assessment of the environmental impacts related to allowing fracking in the Basin.

The DRBC is a federal-interstate body created through a compact agreed to by the President, Congress, state Legislators and governors of New York, New Jersey, Pennsylvania and Delaware.  The Commission has legal authority to approve or disapprove activities that may have a substantial effect on the water resources within the 13,500 square mile Delaware River Basin — including over 2,300 square miles in New York. Under federal law, the DRBC and the federal agencies involved in formulating its policies and regulations are subject to NEPA.   

This matter is being handled by New York City Watershed Inspector General Philip Bein, New York City Watershed Inspector General Scientist Charles Silver, Ph.D., and Assistant Attorneys General Michael J. Myers, Morgan Costello and Adam Dobson under the supervision of the Attorney General’s Environmental Protection Bureau Chief Lemuel M. Srolovic.

*New York Attorney General Press Release (May 31, 2011) – A.G. Schneiderman to Sue Federal Government Today for Failure to Study "Fracking"