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June 13, 2011NEW YORK STATE SUES FEDERAL GOVERNMENT
FOR FAILURE TO STUDY “FRACKING.”
Demand For Fracking Study In Delaware River Basin Has Been Ignored
Even Though Drilling Would Affect NY Watershed And Portions Of 8 New York Counties
Feds Abandon Legally Required Responsibility To Assess Environmental & Public Health Impacts Of Gas Drilling
Schneiderman: Feds Have An Obligation To Protect Public Health & Safety – We Will Force Them To Do So
New York State: The Attorney General’s Office
FULL LEGAL DOCUMENT – 34-PAGE PDF
NEW YORK – Attorney General Eric T. Schneiderman has filed a lawsuit 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 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.
By: Joel R Kupferman National Lawyers Guild- Environmental Justice Committee 212-334-5551 envjoel@ix.netcom.com
DAMASCUS CITIZENS FOR SUSTAINABILITY AND NYH2O
APPLAUD NEW YORK ATTORNEY GENERAL’S NEPA LAWSUIT
Damascus Citizens for Sustainability, Inc. (DCS), a grassroots non-profit citizen group dedicated to protecting public health, the environment and the communities of the Delaware River watershed, and NYH2O, a citizens group dedicated to protecting New York City’s high quality drinking water, are very pleased to support the action taken recently by the Attorney General of New York to compel the federal government to prepare a comprehensive environmental impact statement and public health assessment before regulations are adopted by the Delaware River Basin Commission to allow shale gas development in the Basin.
“For over three years, we have been imploring the DRBC to ‘put the science first’ and prepare an EIS before it considers whether to allow gas drilling in the Basin,” said Barbara Arrindell, director of DCS, adding, “We tried and tried again to get DRBC to do this the right way voluntarily.”
Less than two months after taking office, President Obama stated, in a memorandum to all federal agencies that, “Science and the scientific process must inform and guide decisions of my Administration on a wide range of issues, including improvement of public health, protection of the environment, increased efficiency in the use of energy and other resources, mitigation of the threat of climate change, and protection of national security. The public must be able to trust the science and scientific process informing public policy decisions.”
Cliff Westfall, legal coordinator for DCS, said, “Now is the time to put these words into action and commit to preparing the EIS called for by the New York Attorney General’s lawsuit. Obviously, until this EIS is published and made available to the public and the commissioners, the DRBC should suspend further consideration of its proposed gas development regulations.”
The AG’s action is consistent with legal actions DCS has taken in the last year against the Delaware River Basin Commission and the Pennsylvania Department of Environmental Protection that bring to light many of the environmental risks of gas drilling and the failure of both the DRBC and the PaDEP to follow their own rules and regulations when considering gas well projects, especially for sites that would located in the Special Protection Waters drainage area of the Delaware River Basin.
Joe Levine, president of NYH2O and a board member of DCS, observed, “We are very happy to see the New York Attorney General taking this stand putting the health and public safety of New York and Delaware River Basin above the rush to drill. A science-based approach to decisionmaking should have been the obvious move for DRBC, and yet that agency seems bent on allowing an unlimited number of production wells to follow the exploratory wells it has already allowed, without having first conducted any review of the wells’ compatibility with the Basin as a drinking water source for millions of people. Not only is this not putting the science first, it’s throwing it out the window entirely.”
