The Delaware River Basin Commission (DRBC), which governs water quality and regulates water withdrawals over a portion of the Marcellus Shale, was sued last week by a coalition of environmental groups for allowing natural gas drilling regulations to be proposed before an environmental impact study was completed. A similar lawsuit, filed by New York officials in May, should be dismissed, federal officials contend.

The latest lawsuit, which was filed on Thursday in U.S. District Court for the Eastern District of New York, contends that the commission is a federal agency and therefore covered by the National Environmental Policy Act, which requires environmental impacts to be examined before projects are undertaken. The DRBC was formed through a compact signed by the federal government and the four states with land in the basin: Delaware, New Jersey, New York and Pennsylvania. The four governors and a representative of the Army Corps of Engineers serve as commissioners; all five members were named in the lawsuit.

More than one-third of the 13,539 square miles of the Delaware River basin, an estimated 36% of the land, is within the 48,000 square-mile Marcellus Shale. The DRBC has for several years sought an environmental review of gas drilling within the basin but it has lacked the funding. Commissioners temporarily banned gas development until proposed rules were issued; that process was completed last December (see NGI, Dec. 13, 2010). Public hearings followed and more than 58,000 comments are being analyzed, a DRBC spokesman said.

The lawsuit, filed by the National Parks Conservation Association (NPCA), Riverkeeper and the Delaware Riverkeeper Network, contends that the DRBC’s proposed drilling rules neglected to provide “sufficient protections for local communities, the environment and nearby national parks. As a federal agency, the DRBC must comply with the National Environmental Policy Act (NEPA) and consider the cumulative environmental impacts of a proposed action, and inform the public that they have carefully analyzed these impacts in its decision-making process.”

“The economic benefits of natural gas development must not compromise the long-term benefits of protecting water quality and preserving our national parks, which are already economic generators for local communities,” said NPCA’s Cinda Waldbuesser, Pennsylvania senior program manager.

Delaware Riverkeeper’s Maya van Rossum said the DRBC and the Army Corps had “allowed politics and their annual budget to drive the drilling debate within their agencies. Today, our organizations are rising up in defense of the River and the public good — we are enforcing the law so as to ensure good science, facts and common good are the drivers from here on out.”

Meanwhile, the federal government this week will ask a judge to dismiss a lawsuit filed in May by New York Attorney General Eric Schneiderman, which requests a full environmental review of proposed regulations for Marcellus Shale development in the Delaware River Basin. In court papers filed in U.S. District Court for the Eastern District of New York, the federal government said it would ask Judge Nicholas Garaufis for a dismissal (State of New York v. Army Corps of Engineers et al, No. 1:11-CV-02599). The pre-trial hearing is scheduled for 2 p.m. on Wednesday.

Schneiderman filed the lawsuit on May 31 after his demand that the federal government conduct a NEPA review of regulations proposed by the DRBC went unheeded (see NGI, June 6; April 25). Federal officials had argued that the DRBC is not a federal agency subject to NEPA.

In last week’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 and the Army Corps spokesmen said they could not comment on pending lawsuits. However, Marcellus Shale Coalition spokesman Travis Windle called the coalition’s lawsuit “frivolous” and said it and others like it “fundamentally disregard legal precedent and do nothing to help create jobs, protect the environment or make America more energy secure.” The lawsuits obstruct “the responsible development of clean-burning American natural gas.”

The DRBC’s next scheduled meeting is in September.

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