Federal Government Asks Judge to Dismiss NY Attorney General’s Fracking Lawsuit

Eric SchneidermanOn May 31 of this year, NY Attorney General Eric T. Schneiderman filed a lawsuit in federal court seeking to force 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” (see MDN’s initial coverage here). That is, AG Schneiderman is attempting to use the court system to delay, and if possible prevent, Marcellus Shale drilling in New York by forcing the federal government to launch a multi-year review of hydraulic fracturing in the Delaware River Basin. He bases his lawsuit on the foundation that the Delaware River Basin Commission, a quasi-governmental body, is about to allow drilling in the areas it oversees, including sensitive New York City watershed areas.

According to the federal government, AG Schneiderman does not have a legal foot to stand on with his lawsuit:

The U.S. government said it will ask a judge to dismiss a New York lawsuit that seeks to force a fuller environmental review of how natural-gas extraction could affect 9 million water drinkers in the state.

The U.S. plans to ask U.S. District Judge Nicholas Garaufis in Brooklyn, New York, to dismiss the case on the grounds that the state can’t prove injury and doesn’t have the right to sue federal agencies, according to a letter filed with the court yesterday.

The New York state complaint is “barred by well-settled principles of sovereign immunity,” Assistant U.S. Attorney Sandra Levy wrote in the letter to the judge. Sovereign immunity protects the U.S. from lawsuits unless it waives the right.

New York Attorney General Eric Schneiderman sued on May 31, saying a commission that oversees the Delaware River Basin has proposed regulations that will allow hydraulic fracturing, or fracking, at 15,000 to 18,000 gas wells without a full environmental review.

Schneiderman’s suit seeks to halt the regulations until the commission complies with the National Environmental Policy Act’s requirement for a full review of all health and safety risks.

The Delaware River Basin Commission, which oversees activities in the gas-rich area known as the Marcellus Shale, has a pending application from XTO Energy Inc., a unit of Exxon Mobil Corp., to explore in the area, and has refused to produce a full environmental impact assessment, according to Schneiderman’s complaint.

New York’s claim that it will be harmed is “conjectural and hypothetical, and not actual or imminent,” Levy wrote in the letter. The case also isn’t “ripe” because the agency hasn’t completed its review, she wrote.

The Delaware River Basin covers 58 percent of the land area of New York City’s watershed west of the Hudson River, according to Schneiderman. The region targeted for exploration is protected by a 50-year-old agreement among the U.S. government, New York, New Jersey and Delaware.*

*Bloomberg Businessweek (Aug 3, 2011) – New York State’s Fracking Lawsuit Barred by Law, U.S. Says