A federal court in New York has dismissed for lack of standing three separate suits brought by the state and two environmental groups seeking to compel an environmental impact statement (EIS) for proposed rules allowing hydraulic fracturing for natural gas development in the Delaware River Basin. New York v. U.S. Army Corps of Eng’rs, No. 11-2599 (E.D.N.Y. 9/24/12). The cases were consolidated for pretrial purposes only.
Issued by the Delaware River Basin Commission, which was formed in 1961 by compact among the United States and Delaware, New Jersey, Pennsylvania, and New York, the proposed regulations would end a moratorium in place since 2009 and allow natural gas development within the Delaware Basin, including hydraulic fracturing, and provide for use and disposal of water in connection with that activity. Citing potential effects on wildlife, water quality, public health, recreational opportunities, property values, and other Basin resources, all three suits sought to compel federal agencies to prepare an EIS consistent with the National Environmental Policy Act.
The court found that while the case was not barred by sovereign immunity, plaintiffs could not allege concrete harm necessary to establish standing, and the claims were not prudentially ripe. Stating “[t]he harms that Plaintiffs ultimately are concerned about are speculative, and rely on a chain of inferences that may never come to pass,” the court dismissed the claims.