Judge Tosses Delaware Basin Fracking Suit

     (CN) – A federal judge dismissed a suit demanding an environmental impact statement on the effects of drilling for natural gas in the Delaware River Basin.
     Judge Nicholas G. Garaufis said the suit premature since the plans to frack the basin are currently on hold, but added, that “the courts will be available if and when the [Delaware River Basin Commission] adopts final regulations permitting natural gas development.” The basin includes parts of New York, New Jersey, Pennsylvania and Delaware and provides drinking water to millions, including in major metropolises like New York City and Philadelphia.
     It lies above the Marcellus Shale geological formation, which contains large amounts of natural gas.
     The gas can be released and used as energy through hydrolic fracturing, known as fracking, a process that shoots millions of gallons of water, sand and potentially toxic chemicals deep underground.
     The plaintiffs requested the study to answer concerns about how fracking the basin could impact not only the region’s drinking water, but also the air quality, the migratory patterns of birds, and the health of endangered aquatic and avian species such as the Bald Eagle.
     The suit lists evidence of such harm in parts of Pennsylvania, where fracking is permitted outside the basin, including 11 instances where “wastewater treatment plants along that river were unable to sufficiently treat drilling well wastewater and released that water into the river,” affecting public drinking water, and several instances of failed wells that forced the evacuation of nearby families and caused the pollution of a state park in New York.
     This dismissal applied to three lawsuits, that were consolidated only for pre-trial purposes, brought by New York State and several NGOs, including the Delaware Riverkeeper Network and the National Parks Conservation Association, against multiple federal agencies, including the United States Army Corps of Engineers and the United States Environmental Protection Agency, and the Delaware River Basin Commission. The DRBC is a partnership among the federal government and the river’s four watershed states that was created by a 1961 Congressional Act. The Act stipulates that “[n]o project having a substantial effect on the water resources of the basin shall be undertaken by any person, corporation or governmental authority unless it shall have been first submitted to and approved by the commission.” In 2011, two members stated they would likely vote against proposed hydrofracking regulations for the basin, causing the issue to never be brought to a vote, which in affect put a moratorium on fracking.
     Garaufis dismissed the suit without prejudice based on this moratorium. He found that because no concrete plans to frack the region exist, the grounds to sue the federal agencies are not met. Doing so requires “an injury-in-fact, that is, an actual or imminent, and concrete and particularized, invasion of some legally protect interest of the plaintiff’s.” However, the dismissal also states that should plans proceed, “New York State retains the authority to regulate natural gas development within its own borders,” and has a legitimate interest in regulations in other parts of the basin because affects on the wildlife and air throughout the basin could eventually affect the conditions within the state. After the decision, James Freedland, a spokesman for New York Attorney General Eric Schneiderman stated, “We are also pleased the Court agreed with our office that New York has concrete interests in protecting its citizens and environment from harmful pollution if drilling is allowed.”

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