The Attorney General of the State of New York, Eric Schneiderman, has sued the Army Corps of Engineers, the U.S. Fish and Wildlife Service, the National Park Service, the U.S. Dept. of the Interior, and U.S. EPA (the "Federal Agencies") in federal district court in the Eastern District of New York, seeking to shut down natural gas development in areas of the Delaware River Basin, including areas over the Marcellus Shale. State of New York v. United States Army Corps of Engineers et al., (E.D.N.Y. Complaint signed May 31, 2011).
Specifically, the New York AG seeks to require that the Federal Agencies prepare an EIS before adopting Delaware River Basin Commission (DRBC) regulations that would authorize natural gas development within the Delaware River Basin (the "Basin"). Until an EIS is prepared, the State seeks to have natural gas development shut down.
In its Complaint, the State alleges that promulgation of the DRBC regulations "is expected to result in the development of between 15,000 and 18,000 natural gas wells within the Basin in Pennsylvania and New York." The State contends that EPA has expressed "serious reservations" about whether gas drilling in the New York City watershed is consistent with the vision of long-term maintenance of a high quality, unfiltered water supply.
As background, on May 19, 2009, the DRBC issued a determination prohibiting natural gas extraction projects within "Special Protection Waters" in the Basin. These Waters include the full extent of the Basin in New York and nearby waters in Pennsylvania which lie within the Marcellus Shale. The State alleges that "hydrofracking in the Basin will involve pumping millions of gallons of water containing "fracking" additives into the ground under high pressure, at each well." Moreover, the State claims that flowback waters and some production waters will contain fracking additives "and other potential contaminants" and thus must be "properly handled."
New York asserts that while the DRBC has found that natural gas development in the Basin poses "potentially significant adverse environmental impacts", it nevertheless refuses to comply with NEPA and prepare an EIS. The Federal Agencies also have refused to prepare an EIS.
New York claims that widespread drilling could result in a parade of horribles - spills and discharges "risking contamination of the water supply with brine, radioactive materials, methane, aromatic hydrocarbons, heavy metals, pathogens, turbidity, phosphorus and other potentially harmful substances."
The Complaint references the recent April 19, 2011 "blowout" of a Chesapeake Energy Corp. natural gas well in Bradford County, Pa. "during the hydraulic fracturing process", despite the fact that the Complaint acknowledges that the well is located outside of the Basin.
New York's concerns extend beyond fracking, and surface water and groundwater impacts. In a separate section of the Complaint, the State alleges that gas development will result in air pollution and potential health impacts, and that the DRBC regulations would allow natural gas development without evaluating potentially adverse climate change impacts resulting from the venting and leakage of methane during production, storing, distribution or use of natural gas within the Basin.
Attorney General Schneiderman seeks to have the Federal Agencies promptly prepare an EIS and to "enjoin Defendants immediately to cease approving or carrying out any aspect of the Action [the development of the DRBC Regulations authorizing natural gas development within the Basin] until they have fully complied with their obligations under NEPA." If the Court grants this request for injunctive relief, natural gas development over areas of the Marcellus Shale in the Basin could be shut down for years while the NEPA process runs its lengthy course.
