Courts dismiss New York fracking suit
A US court has dismissed a suit filed by the state of New York seeking to block hydraulic fracturing (fracking) in the Delaware basin while regulatory agencies consider regulations governing the practice
The federal court for the Eastern District of New York on 24 September determined that a request for a full environmental review of fracking in the four states that make up the Delaware River Basin Commission (DBRC) — New York, New Jersey, Pennsylvania and Delaware — was “speculative” given the lack of concrete development plans in the affected areas.
Further, the court ruled that a blanket ban was “moot” given a lack of regulations in the DBRC itself, which had initiated a process of formulating guidelines before the suit was filed.
In May 2011, the state of New York filed three pre-emptive lawsuits against several federal agencies, including the US Army Corps of Engineers, the Parks Service, the Department of the Interior and the Environmental Protection Agency (EPA), to prevent the DBRC from considering proposals to allow fracking in the Marcellus Shale, which straddles the northeastern US states.
The DBRC was formed in 1961 to jointly manage water resources between the member states and the federal government in the Delaware basin. The basin includes the New York watershed that supplies drinking water for 15 million people.
The DBRC also has the authority to make and enforce regulations to control water pollution in the jointly managed areas, including fracking.
Any fracking that would occur in the region would consume large amounts of fresh water from the region’s rivers and streams, while wastewater would require disposal and treatment that would be regulated under the auspices of the DRBC.
The plaintiffs cited 11 examples when treatment plants in Pennsylvania were unable to sufficiently treat waste water that was subsequently released into local rivers and streams. In addition, spills and well failures adversely affected the drinking water quality of at least 26 families and led to violations of state water quality standards.
The cities of New York and Philadelphia, along with environmental groups, supported the petition, while intervenor-defendants included the American Petroleum Institute, the US Oil and Gas Association and the Independent Petroleum Association of America, representing companies like ExxonMobil.
The defendants successfully argued that the prohibitions were unnecessary “for failure to state a claim for which relief can be granted”. In other words, it is useless to seek legal remedy against permits that have not been granted.
This is partly due to a de facto moratorium that has prevented fracking on state lands while regulations are devised. In May 2010, the DBRC deferred consideration of applications for fracking until such a time as it had adopted regulations governing the practice. Those restrictions remain in place.
In December 2010, the commission released draft regulations that were opposed by the state of New York, prompting the law suit. That same month, two of the four DBRC commissioners indicated that they would likely vote against the draft rules, further negating the need for remedy from the courts.
Despite the legal setbacks, the judge in the case upheld the authority of the state of New York to regulate the watersheds that supply New York City and its environs, regardless of what the DBRC does.
In fact, the state has banned fracking on all state and private lands within the watershed. On 30 September, New York’s Department of Environmental Conservation said it expects to miss a 29 November deadline for finalising regulations, which would require the state to reopen the entire regulatory review and further delay any permits until 2014.
And it may not be the last word.
Though it determined there is no immediate risk from fracking, “the courts will be available if and when the DBRC adopts final regulations permitting natural gas development and are more than capable of preliminarily enjoining any development” —another way of saying that it isn’t over yet.