The federal government will ask a judge to dismiss a lawsuit from New York state Attorney General Eric Schneiderman, which he filed to compel a full environmental review of proposed regulations for Marcellus Shale development in the Delaware River Basin.
In court papers filed Monday in U.S. District Court for the Eastern District of New York, the federal government plans to ask Judge Nicholas Garaufis for a dismissal. A pre-motion conference for the case -- also known as State of New York v. Army Corps of Engineers et al. (No. 1:11-CV-02599) -- has been scheduled for 2 p.m. on Aug. 10.
Schneiderman filed suit on May 31 after his demand that the federal government conduct a National Environmental Policy Act (NEPA) review of regulations proposed by the Delaware River Basin Commission (DRBC) went unheeded (see Shale Daily, June 1; April 21). Federal officials had argued that the DRBC is not a federal agency subject to NEPA.
In Monday's filings, federal attorney Loretta Lynch said the case should be dismissed because the doctrine of sovereign immunity bars lawsuits against the United States and the State of New York when the plaintiff cannot prove that it was injured.
"Although [the] plaintiff has alleged a violation of NEPA, [the] plaintiff has not alleged a concrete, particularized, cognizable interest that is actually and imminently affected by the alleged forthcoming issuance of the DRBC regulations," Lynch said. She also referred to the lawsuit as "a misguided attempt" to stop the DRBC from issuing regulations before an environmental study is completed.
Lynch also said the lawsuit should be dismissed because the DRBC is still in the process of enacting rules governing natural gas development in the basin. "The court should dismiss this case on the alternative ground that it is not ripe because the DRBC's regulations have been proposed but not adopted," she said.
The DRBC proposed regulations last year to allow water from the basin to be used for gas development (see Shale Daily, Dec. 10, 2010). The proposed rules include guidelines for operators to reuse flowback and production waters, and to treat wastewater and mine drainage waters. The DRBC is currently going through more than 40,000 public comments, a process that must be completed before final rules can be adopted. The commission does not expect to be done with the public comments before September (see Shale Daily, April 18).