Judge dismisses N.Y. AG's fracking suit against feds

Jessica M. Karmasek Sep. 25, 2012, 1:00pm


BROOKLYN, N.Y. (Legal Newsline) - A federal judge has dismissed New York Attorney General Eric Schneiderman's lawsuit against the U.S. Army Corps of Engineers.

Last year, the Corps told Schneiderman it would not do a study of the effects of hydraulic fracturing on the Delaware River Basin.

Schneiderman then 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, 2011.

In a 29-page memorandum and order filed Monday, Judge Nicholas G. Garaufis for the U.S. District Court for the Eastern District of New York concluded that the attorney general's suit is speculative.

"Plaintiffs do not point to, the court is not aware of, case law that finds an injury-in-fact in a situation like Plaintiffs'. The line between proposed regulations and final regulations may be subtle, but the court believes it is real, in both the (National Environmental Policy Act) cases and in the other probabilistic injury cases," he wrote.

"Nor will this court extend the concept of injury-in-fact as Plaintiffs request."

Garaufis said with a "mere draft," the court has no way of judging reliably how probable it is that the regulation will be enacted, and thus no way of judging whether risks that natural gas development may create are "more than conjecture."

"While Plaintiffs provide a great deal of support for how their interests may be threatened if natural gas development is allowed in parts of the basin, as of now it is not allowed, and the mere existence of proposed regulations is not sufficient to allow this court to say Plaintiffs' interests are at risk," the judge wrote.

Schneiderman sued the federal government for its failure to study the allegedly harmful "fracking" technique.

Fracking is a horizontal drilling technique that utilizes high-volume hydraulic fracturing.

"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," Schneiderman said last year.

"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."

Schneiderman alleged that the law requires federal agencies to conduct a full review of actions that could cause significant environmental impacts.

Despite this, the Delaware River Basin Commission, with federal agency approval, proposed regulations allowing natural gas development in the basin without undertaking a review, the attorney general alleged.

Last year, the commission estimated that the proposed regulations would allow between 15,000 and 18,000 gas wells to be drilled within the basin, most of which would be developed by fracking.

The Delaware River Basin includes portions of the New York City watershed, Broome, Delaware, Green, Orange, Chenango, Schoharie, Ulster and Sullivan counties. The portion of the watershed that provides drinking water is used by more than nine million New York residents and visitors.

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

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