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Is DRBC a federal agency?

By Fritz Mayer
April 28, 2011

It’s not yet clear how the Delaware River Basin Commission (DRBC) will react to the lawsuit threatened by New York Attorney General Eric Schneiderman. The decision will ultimately come from the four commissioners, the governors of New York, New Jersey, Pennsylvania and Delaware and the federal representative.

But if the DRBC denies Schneiderman’s demand and refuses to prepare a full environmental impact statement on the effects of gas drilling and hydraulic fracturing in the Delaware River Basin, one of the central questions that will likely be raised is whether or not the DRBC is a federal agency.

Schneiderman said that the DRBC must complete the review because such reviews are mandated for all federal agencies by the 1970 National Environmental Policy Act (NEPA).

But drilling supporters say the DRBC is not a federal agency.
After Schneiderman’s announcement, Marian Schweighofer of the Northern Wayne Property Owners Alliance wrote in a release. "We were surprised that Mr. Schneiderman doesn't seem to know that the DRBC is not a federal agency and subject to NEPA. The Federal 2nd Circuit Court of Appeals decided almost 30 years ago that the DRBC is not a federal agency.”
The idea was also put forward by the Independent Oil and Gas

Association of New York, which said, the court made that decision in a case called Delaware Water Emergency Group v. Hansler.

However, not everyone agrees with that assessment. A letter from the Environmental Advisory Council of Easton, PA to the DRBC sent last year, had this to say on the matter: “We note that historically the DRBC has prepared environmental impact statements and in several cases the commission conceded that it was a federal agency for purposes of NEPA;” the letter listed several cases. As to the Hansler case, the council wrote, “While the court expressed some doubt on the matter (of federal agency status), it also noted that the DRBC did not dispute that NEPA obligations applied to it, and stated ‘to the extent that the United States' member of the commission votes in favor of an application or otherwise acquiesces in accordance with the Compact, such approval might be deemed federal action.’”

In his announcement, Schneiderman's said that he sent letters to “agencies that decide policy for the federal government as a member of the DRBC. Led by the U.S. Army Corps of Engineers, the federal agencies include the U.S. Fish and Wildlife Service, the National Parks Service and the U.S. Environmental Protection Agency.” So, even if a court were to rule that the DRBC is not a federal agency, other federal agencies may be named in a lawsuit.

Here is another issue that

Here is another issue that federal agency is involved. The United States Court of Appeals has ruled that embryonic stem cell research can receive federal financing. A federal court ruled in 2010 that federal financing could not be devoted to stem cell exploration, since federal law prevents federal funds getting used for any purpose that could result in the destruction of a human embryo. Stem cell exploration is nevertheless a hotly contested issue. I found this here: Embryonic stem cell research can be funded, says appeals court

AG's move was to simply grab headlines

Schneiderman's office answered the IOGA with the following,

"The Attorney General’s demand letter is addressed to the federal Army Corps of Engineers’ federal representative on the Commission, not to the Commission itself. The AG has not stated that he intends to sue the DRBC if the federal government refuses to comply with NEPA, which it is required to do, but rather the appropriate involved federal agencies.”
So apparently he's going after the federal government, or some unnamed agency, that should go far. Can he possibly pi$$ away more of NY taxpayer money and NY AG office personnel on this frivolity? Oh yes, he can also waste US departments and the courts time and which all boils down to more $$$ from the US taxpayers' pockets.
All for headlines and his politics.

Good presentation of the issue

My estimation is that the DRBC will proceed with the formulation of the draft regulations, without performing a cumulative environmental EIS first, unless a donor/funder emerges in a timely fashion. Even then, the commissioners may not have the political will to stop the current rule formulation proces in order to perform the EIS, without first having been forced to by lawsuit. They seem to desire political cover given by the Federal Court.

As Fritz Mayer points out, even if the DRBC, as an agency, is not ruled to be Federal, the Federal representative agencies, who fill a voting commissioner's role, certainly are.

Damascus Citizens is very happy that the NYS AG stepped in. If he had not, we would have brought suit, and as Jeff Zimmerman is quoted, we will join NYS in any case.

From the other side, there is no doubt that NWPOA et al will bring suit, at some time, depending on how this enfolds. I can't imagine it being resolved, except through Federal Court action.


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