On May 31, 2011, New York Attorney General, Eric Schneiderman, filed an action in the United States District Court for the Eastern District of New York seeking declaratory and injunctive relief against several federal agencies and the United States Army Corps of Engineers (“Army Corps”). In the filing the state sought to compel the agencies to comply with the National Environmental Policy Act (“NEPA”) before authorizing the Delaware River Basin (“basin”) shale natural gas development.  The agencies named in the suit along with the Army Corps are the United States Fish and Wildlife Service, the United States National Park Service, the United States Department of Interior, the United States Environmental Protection Agency, and the chief executives of each agency.

The Delaware River Basin Commission (“DRBC”) is an interstate federal agency created to protect the water in the basin, and in December 2010, the DRBC proposed regulations that would allow gas wells to be drilled in the basin.  It is estimated that the development will lead to 15,000-18,000 gas wells in the Pennsylvania and New York portions of the basin.  Most of those wells will be developed using hydraulic fracturing (“fracking”).  The use of fracking has increased exponentially in natural gas exploration; however, it has also come under scrutiny for the potential threat to contaminate water supplies.  Since the basin provides water for much of New York, Schneiderman is asking that DRBC not to move forward on the December proposed regulations until an environmental impact statement can be made available for public comment under NEPA.  Schneiderman cites to fracking that has already commenced outside of the New York shale, and in those areas Schneiderman states there are “hundreds of violations of water pollution laws.”  In the past, DRBC has stated it is not subject to NEPA requirements, but the recent suit sates the Commission on Environmental Quality (“CEQ”) has consistently held DRBC is subject to NEPA.   This particular law suit may have larger implications as natural gas is considered a bridge fuel to transition the nation away from a heavy dependence on generation fueled by coal.