Environmentalists file to block N.E. Pa. drilling
By Sandy Bauers
Inquirer Staff Writer
Posted on Fri, Aug. 5, 2011
In another potential roadblock to natural-gas drilling in the upper Delaware River basin, a consortium of environmental groups filed suit in federal court Thursday seeking to delay the adoption of regulations until environmental impacts are studied.
The groups contend that the Delaware River Basin Commission, which governs water quality and withdrawals, is subject to federal rules requiring environmental reviews of major projects.
The commission “has acknowledged the value of it, and they have simply chosen not to do it,” said Maya van Rossum of the Delaware Riverkeeper Network, one of the groups that filed the suit.
The industry called the suit frivolous and obstructive.
Ultimately, the issue centers on whether the commission is a federal agency and therefore covered by the National Environmental Policy Act, which requires the examination of the environmental impacts of major projects before undertaking them, said Kenneth Kristl, director of the Environmental Law Clinic at Widener University.
The commission was formed by a 1961 compact signed by the federal government and the four states with land in the basin – Pennsylvania, New Jersey, New York, and Delaware. Members include the states and a federal representative, the Army Corps of Engineers, which was also named in the lawsuit.
Kristl’s clinic, which has represented drilling opponents, contends that the commission is subject to the act. Because the compact was ratified by Congress, he said, “technically, it is a creature of federal law.”
“The flip side of the argument is that it is not a typical federal agency in the sense that it is not controlled by the federal government,” he said.
“That is going to be the interesting legal issue. . . . If they are subject to it, they have not done anything to comply with it.”
The Delaware is a high-stakes area. Most of the upper basin is underlain by the rich Marcellus Shale formation, a potential source of cheap natural gas as well as income for people who own land where drilling is targeted.
But the upper river and many of its tributaries are under special protections because of their high water quality. And the Delaware provides drinking water for 15 million people, including those in Philadelphia and some suburbs.
The commission has put a halt to drilling until regulations are in place. So while more than 3,500 Marcellus wells have been drilled in the rest of Pennsylvania, state records show, none are active in the northeastern area within the basin.
Regulations were proposed in December, and a public comment period ended April 15.Ever since, the battle has become one of timing.
Commission staff had estimated that the soonest the 58,000 submissions received during the comment period could be analyzed and responded to would be by the commission’s September meeting.
Pennsylvania and New Jersey want to proceed.
New Jersey’s representative on the commission, John Plonski, a water resources manager in the Department of Environmental Protection, has threatened to withhold payments to the financially strapped commission if it does not vote on the regulations in September.
But the state attorney general in New York, which is doing its own environmental-impact study, filed a federal lawsuit May 31 that is similar to the one filed Thursday by the environmental groups. New York’s suit named the Army Corps of Engineers and other federal agencies, not the Delaware River Basin Commission (DRBC).
On Monday, an assistant U.S. attorney wrote to U.S. District Judge Nicholas G. Garaufis in Brooklyn, N.Y., where the case was filed, saying she planned to ask that the suit be dismissed because it was the DRBC that proposed the regulations.
The attorney, Sandra L. Levy, who is representing the federal government, contended that New York’s suit was “an effort to make an end run around” the matter.
Thursday’s suit by the environmental groups, also filed in Brooklyn, names both the Army Corps and the DRBC.
As such, it is “better positioned than the first suit,” said Ross H. Pifer, a Pennsylvania State University law professor. “But the plaintiffs here still must clear the critical hurdle of establishing that DRBC is a federal agency.”
Spokesmen for both the commission and the Army Corps said they had not yet reviewed the complaint and could not comment.
Travis Windle, spokesman for the Marcellus Shale Coalition, an industry group, said “frivolous lawsuits like this . . . fundamentally disregard legal precedent and do nothing to help create jobs, protect the environment, or make America more energy secure.”
He said they obstructed “the responsible development of clean-burning American natural gas.”
The commission itself once sought an environmental review, but it had no money to do one. U.S. Rep. Maurice D. Hinchey (D., N.Y.) and others tried to get a $1 million appropriation in the 2001 federal budget, but they failed.
Contact staff writer Sandy Bauers at 215-854-5147, firstname.lastname@example.org, or @sbauers on Twitter. Visit her blog at philly.com/greenspace.