Bloomberg News

New York State’s Fracking Lawsuit Barred by Law, U.S. Says

August 02, 2011

(Updates with statement from Schneiderman spokeswoman in fifth paragraph.)

Aug. 2 (Bloomberg) -- The U.S. government said it will ask a judge to dismiss a New York lawsuit that seeks to force a fuller environmental review of how natural-gas extraction could affect 9 million water drinkers in the state.

The U.S. plans to ask U.S. District Judge Nicholas Garaufis in Brooklyn, New York, to dismiss the case on the grounds that the state can’t prove injury and doesn’t have the right to sue federal agencies, according to a letter filed with the court yesterday.

The New York state complaint is “barred by well-settled principles of sovereign immunity,” Assistant U.S. Attorney Sandra Levy wrote in the letter to the judge. Sovereign immunity protects the U.S. from lawsuits unless it waives the right.

New York Attorney General Eric Schneiderman sued on May 31, saying a commission that oversees the Delaware River Basin has proposed regulations that will allow hydraulic fracturing, or fracking, at 15,000 to 18,000 gas wells without a full environmental review. Fracking is the process in which water, sand and chemicals are pumped underground to break apart rock formations and release natural gas.

“As our complaint makes clear, the federal government has an obligation to undertake the necessary environmental impact study,” Schneiderman spokeswoman Lauren Passalacqua said in a statement.

Marcellus Shale

Schneiderman’s suit seeks to halt the regulations until the commission complies with the National Environmental Policy Act’s requirement for a full review of all health and safety risks.

The Delaware River Basin Commission, which oversees activities in the gas-rich area known as the Marcellus Shale, has a pending application from XTO Energy Inc., a unit of Exxon Mobil Corp., to explore in the area, and has refused to produce a full environmental impact assessment, according to Schneiderman’s complaint.

New York’s claim that it will be harmed is “conjectural and hypothetical, and not actual or imminent,” Levy wrote in the letter. The case also isn’t “ripe” because the agency hasn’t completed its review, she wrote.

The Delaware River Basin covers 58 percent of the land area of New York City’s watershed west of the Hudson River, according to Schneiderman. The region targeted for exploration is protected by a 50-year-old agreement among the U.S. government, New York, New Jersey and Delaware.

Drinking Water

New York City has spent almost $1.5 billion to protect the drinking water that flows from the watershed west of the Hudson, Schneiderman said in his complaint. The money has gone to buying land to serve as a buffer for pollutants, upgrading sewage plants and regulating human activity.

More than 2,000 natural gas wells have been drilled in Pennsylvania, resulting in “hundreds of violations of water pollution laws,” Schneiderman said in the complaint, citing an April 19 blowout of a natural-gas well owned by Chesapeake Energy Corp.

The case is New York v. U.S. Army Corps of Engineers, 11- cv-2599, U.S. District Court, Eastern District of New York (Brooklyn).

--Editors: Andrew Dunn, Peter Blumberg

To contact the reporter on this story: Tiffany Kary in New York at tkary@bloomberg.net

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net; John Pickering at jpickering@bloomberg.net


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