Here’s an update for those who’ve been following the NYS Attorney General’s lawsuit challenging the Delaware River Basin Commission (DRBC) for failing to consider the potential environmental effects before proposing new fracking rules for the basin. The case was dismissed earlier this week, but only on narrow procedural grounds. This means that the parties can still come back to court if the DRBC issues final regulations without performing an environmental review.
For background, the lawsuit was filed in 2011 – and was subsequently joined in by a coalition of environmental groups including the National Parks Conservation Association, Hudson Riverkeeper and the Delaware Riverkeeper Network – against the DRBC and the federal Army Corps of Engineers, which has a seat on the Commission. The suit alleged that the government failed to comply with federal law by proposing regulations for gas drilling within the Delaware River Basin without first conducting a full review of the environmental impacts as required under the National Environmental Policy Act (NEPA). In its decision, a federal court held that judicial review would be premature because the DRBC has not yet approved final regulations.
But although it’s disappointing that the court ruling did not simply require the agencies to conduct a full environmental review of the effects of fracking in the Delaware River Basin, all is certainly not lost.
The defendant government agencies had argued that they are not required to assess the environmental impacts of this action and sought dismissal on the merits of the case. However, the court dismissed the case only on the narrow procedural grounds described above, but did not rule that no environmental impact statement is required. This means the case may be brought in court again if the DRBC chooses to finalize the regulations and allow fracking to take place in the Delaware River Basin without first performing environmental review. While it’s not the quick resolution we may have hoped for, the case may indeed live to see another day.