NEW YORK, July 24 (Reuters) - A lawyer for the U.S.
government asked a federal court on Tuesday to throw out a
lawsuit brought by New York state challenging proposed natural
gas development in the Delaware River Basin.
Assistant U.S. Attorney Sandra Levy said New York could not
challenge regulations that would allow development to go ahead
until those regulations had been finalized.
New York and environmental groups sued the U.S. government
in 2011 seeking environmental studies to determine the effect of
gas drilling in the Delaware River Basin, which supplies water
to about 15 million people.
The proposal would allow as many as 18,000 wells in the
Delaware River Basin, some of which would be developed using
hydraulic fracturing, or fracking, in which underground gas is
extracted by injecting a high-pressure stream of water and
During oral arguments Tuesday on the government's motion to
dismiss the lawsuit, Levy argued that New York could not object
to the lack of environmental review until the Delaware River
Basin Commission had issued a final version of the regulations.
"Right now, the injuries are hypothetical, not actual," Levy
said. She added that the United States could not control the
actions of the commission, which comprises one representative
from each of the four states bordering the river plus one from
the federal government, and could not be sued for its decisions.
A lawyer for the commission, Kenneth Warren of Hangley
Aronchick Segal Pudlin & Schiller, said it "has no ability to
fund" a study under the National Environmental Protection Act
demanded by the plaintiffs. While the agency believes it is not
bound by the act, Warren said it nevertheless has performed a
robust environmental analysis on the drilling proposal. It would
continue to study the issue until all commissioners were
confident in the ability to drill safely, he said.
Lawyers for the plaintiffs argued that the commission was
required to perform an analysis under the act as soon as the
proposal was issued, and that it was the commission's
responsibility to find the funds to do so. Until such a review
is complete, they said, the final regulations should be blocked.
"There's no NEPA exception for the commission," said Phillip
Bein, an attorney in the New York attorney general's office.
U.S. District Judge Nicholas Garaufis reserved his decision
on the government's motion to dismiss the lawsuit. He voiced
concern for the potential impact on urban centers like New York
City that rely on the Delaware River Basin for water.
"There's a serious reason to be concerned about the water
supply," Garaufis said. "If something happens, it could have a
detrimental effect on millions of people."
New York is currently working on its own environmental
review to determine whether to permit fracking in the state.
Some towns have taken steps to ban the practice within their
borders, and several of those bans have survived initial
challenges in New York state courts.
The case is State of New York v. U.S. Army Corps of
Engineers, U.S. District Court for the Eastern District of New
York, No. 11-2599.
For New York: Phillip Bein and Andrew Frank of the New York
State Office of the Attorney General.
For the U.S. Army Corps of Engineers: Sandra Levy of the
U.S. Attorney's Office for the Eastern District of New York.
For the Delaware River Basin Commission: Kenneth Warren of
Hangley Aronchick Segal Pudlin & Schiller.
For the Delaware Riverkeeper Network: Jane Davenport, Jordan
Yeager, Nicholas Patton and Lisa Perfetto.
(Reporting by Jessica Dye)
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