U.S. government wants N.Y. AG's fracking suit dismissed

Jessica M. Karmasek Aug. 4, 2011, 11:18am


BROOKLYN, N.Y. (Legal Newsline) -- The federal government plans to ask a U.S. district judge to dismiss New York Attorney General Eric Schneiderman's lawsuit against the U.S. Army Corp of Engineers.

In May, the Corp of Engineers told Schneiderman it would not do a study of the effects of hydraulic fracturing on the Delaware River basin.

Schneiderman threatened to sue the Corps if it did not move to halt the rulemaking process for natural gas drilling and hydrofracking in the basin. The attorney general filed suit May 31.

U.S. Attorney Loretta E. Lynch, in her letter to Judge Nicholas G. Garaufis of the Eastern District of New York, requests a pre-motion conference for the government's planned motion to dismiss the complaint for lack of subject matter jurisdiction.

"First, Plaintiffs complaint is barred by well-settled principles of sovereign immunity. Second, Plaintiff lacks Article III standing to maintain this action because it cannot demonstrate a cognizable injury in fact that is traceable to a challenged action of Defendants and is redressable by a favorable decision of this Court," Lynch wrote in the eight-page letter to Garaufis on Monday.

"Finally, to the extent that the (Delaware River Basin Commission) has not completed its rulemaking process, Plaintiffs claim is not ripe for judicial review."

Schneiderman said in April that the federal government is one of four entities that make up the basin's commission, so it must comply with the National Environmental Policy Act and complete a study.

But the Corps has argued that the commission is not a federal agency.

Hydraulic fracturing, also referred to as fracking, is the process of initiating and propagating a fracture in a rock layer, employing the pressure of a fluid as the source of energy.

The fracturing is done from a wellbore drilled into reservoir rock formations to increase the extraction and recovery rates of oil and natural gas.

The process is somewhat controversial because of its environmental safety and health concerns.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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