U.S. Says New York State Can’t Sue Over Fracking Regulations

U.S. Says New York State Can’t Sue Over Fracking Regulations by Tiffany Kary, July 24, 2012, Bloomberg
New York sued federal agencies in May 2011 to force a fuller assessment of the environmental impact that gas development could have its water supply. Assistant U.S. Attorney Sandra Levy argued today in federal court in Brooklyn, New York, that the Environmental Protection Agency and other federal parties sued by the state don’t have control over how the commission regulates fracking. “The federal defendants didn’t cause the rules to be proposed and can’t stop them from being issued,” Levy said. She also told U.S. District Judge Nicholas G. Garaufis that the DRBC doesn’t have to comply with U.S. laws that require a fuller environmental review because it isn’t a federal agency. New York, arguing that the DRBC is a federal agency, maintains that it does have a right to sue. The state seeks a ruling in its favor without a full trial. Garaufis said he would rule on the motions after today’s hearing. The commission says it lacks funds for a full environmental review even if it was obliged to conduct one. The DRBC is a compact formed between Delaware, New Jersey, New York and Pennsylvania and tasked with protecting the water quality in the Delaware Basin. “So we have an unfunded mandate — you have responsibility but not the capability to protect the water quality of four states and 15 million people?” Garaufis asked a lawyer for the DRBC. … Assistant Attorney General Andrew Frank said the state, while can’t regulate fracking in other states, may still be exposed to air and water pollution. The federal agencies named as defendants also argued today that the state can’t prove injury from fracking, and that the case isn’t “ripe” because the commission hasn’t issued any regulations yet. The state said it can’t determine how protective the rules are without a full environmental impact statement. The lawsuit, brought by New York Attorney General Eric T. Schneiderman, also pits arguments for environmental conservation against those for a domestic energy source and new jobs. New York City Council and environmental groups have sided with the state, warning of breathing problems for city residents and risks to fish in the Chesapeake Bay. Trade groups that represent companies including Exxon Mobil Corp. (XOM) have sided with the federal government, and say the lawsuit is based on “speculative fears.” … Schneiderman claimed in his suit the DRBC and federal agencies had proposed regulations that will allow fracking at 15,000 to 18,000 gas wells without a full environmental review. If the regulations are issued, a moratorium on drilling in New York, already in effect for 18 months, will be lifted. New York says it has shown that fracking generates millions of gallons of wastewater contaminated with toxic metals and radioactive substances, and that companies drilling in Pennsylvania have violated the law 1,600 times in recent years, harming the state’s water. … New York City has spent almost $1.5 billion to protect the drinking water that flows from the watershed west of the Hudson River, 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. … 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).

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