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State Attorney General Sues Federal Agency Over Hydrofracking

New York Attorney General Eric Schneiderman says that the member entities of the Delaware River Basin Commission are disregarding federal mandates by refusing to conduct a study on the effects of hydrofracking.

A lawsuit filed Tuesday by New York Attorney General Eric Schneiderman could stall the onset of hydrofracking in the Delaware River Basin, an area that supplies drinking water to more than nine million people in Westchester County and New York City.

Schneiderman filed the lawsuit in a Brooklyn federal court against U.S. Army Corps of Engineers Brigadier General Peter A. DeLuca, who represents the Delaware River Basin Commission (DRBC.) 

The DRBC, also comprised of the governors of New York, New Jersey, Pennsylvania and Delaware, identifies itself as "a federal-interstate government agency responsible for managing the water resources within the 13,539 square-mile Delaware River Basin without regard to political boundaries." The suit also includes the National Park Service, the U.S. Fish and Wildlife Service and the Environmental Protection Agency as defendants.

The lawsuit alleges that the federal government has failed "to commit to a full environmental review of proposed regulations that would allow natural gas drilling – including the potentially harmful 'fracking' technique – in the Delaware River Basin."

“Before any decisions on drilling are made, it is our responsibility to follow the facts and understand the public health and safety effects posed by potential natural gas development,” Schneiderman said. “The federal government has an obligation to undertake the necessary studies, and as I made clear last month, this office will compel it to do so."

The Attorney General is accusing the federal agencies of not complying with the National Environmental Policy Act, which requires federal agencies to conduct a full review of actions that may cause significant environmental impacts.

Hydraulic fracturing, or hydrofracking, is a method of natural gas extraction that uses a combination of water, chemicals and sand to force natural gas up from beneath shale formations. More than a third of the Delaware River Basin, which includes Broome, Chenango, Delaware, Schoharie, Green, Ulster, Orange and Sullivan Counties, sits atop the Marcellus Shale region, one of the largest shale formations in the world.

In a reponse to Schneiderman's threat to sue last month obtained by Gannett's Albany bureau, DeLuca wrote that the DRBC is not mandated to conduct studies under NEPA because it isn't a federal agency.

"We therefore believe that the federal commissioner is neither required to produce, nor has the statutory authority to perform, a study under NEPA as part of this process," DeLuca wrote.

The issue of hydrofracking is controversial for many local residents because New York City and Westchester County's drinking water is sourced from the Delaware system in the Delaware River Basin. The Catskill and Croton systems also provide drinking water to millions of people in the region.

James Smith, a spokesman for the Independent Oil and Gas Association of New York, said that the organization's position was confirmed by the U.S. Army Corps of Engineers.

"Based on that exact distinction that the DRBC is not a federal agency and is not subject to the Environmental Projection Agency, we think that it's unfortunate that the legal facts are not prevailing in the Attorney General's office," said Smith. "It doesn't make sense in our view to attempt to block an industry where it's been proven that there's proper regulations in place to protect the environment."

But a lawsuit issued by Maryland Attorney General Douglas Gansler on May 2 charges that a well blowout at a Pennsylvania site operated by the gas company Chesapeake Energy contaminated the state's water supplies. 

The suit alleges that the April 19 blowout at a well in Leroy Township, PA caused "thousands of gallons of fracking fluids to be released from a well owned and operated by Chesapeake Energy into Towanda Creek, a tributary of the Susquehanna River, which supplies 45 percent of the fresh water in the Chesapeake Bay."

Smith maintains that well blowouts are rare.

"They've been well managed when they've happened. No one's suggesting that the oil and gas industry is a perfect one. A perfect industry doesn't exist," he said. "What we all hope for with the regulations in place now and that the Department of Environmental Protection is coming up with is that negative events are minimized when they do occur and they're taken care of as quickly as possible."

Supporters of gas drilling also note that the industry generates jobs in economically depressed areas. 

According to a study by the Marcellus Shale Coalition, Pennsylvania state data indicates that hydrofracking projects created 48,000 jobs from late-2009 to early-2011, 71 percent of which were filled by state residents.

But environmental advocates and many government representatives are urging caution in allowing hydrofracking in New York, particularly in the West-of-Hudson New York City watershed.

Local representatives to the state legislature have expressed opposition to hydrofracking. Assemblyman Robert Castelli (R - Goldens Bridge) said in April: "We must not allow political and economic pressure to cloud the judgment of policy makers when deciding the environmental fate of New York State by whimsically granting gas companies the rights to drill in the Marcellus Shale region."

Castelli has sponsored legislation that would make it a crime to contaminate a water supply. He co-sponsored legislation with Assemblyman James Brennan (D-Brooklyn) that would create exclusion areas that ban hydrofracking within the New York City and Westchester watershed or anywhere within five miles of its boundaries.

In June 2010, the Westchester County Board of Legislators passed an unanimous resolution calling for the bank of proposed natural gas drilling projects in the Catskill-Delaware watershed region. They also called for a moratorium on hydrofracking throughout the state, pending further comprehensive and independent review of the technology. 

"It should not take a lawsuit by the New York Attorney General to convince the DRBC to consider the risks before issuing rules that would permit potentially tens of thousands of new gas wells to be developed in the watershed," said Kate Sinding, Senior Attorney for the National Resources Defense Council.

Sinding said the suit could "have a real effect on holding things up in permitting drilling in the Delaware River Basin. What we hope [is that] it convinces these federal actors—even if they want to take the position that they're not a federal agency—to do a comprehensive environmental review."

The Environmental Protection Agency and the New York State Department of Environmental Conservation are both currently assessing the effects of hydrofracking. New York Governor Andrew Cuomo last week issued an Executive Order that gives the DEC until July 1 to complete its survey.

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