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.
Another statement that suggests there may be more than one federal agency involved in possible litigation came from Barbara Arrindell, co-founder of Damascus Citizens for Sustainability. She said, “It is absolutely essential that a full and complete EIS be undertaken before the DRBC proposes regulations. NEPA requires this of the federal family of agencies that share in DRBC decision-making.”
In any case, DCS may become part of the legal action. Jeff Zimmerman, an attorney for DCS, said in a statement, “If the federal agencies don’t start preparing the environmental impact statement called for by the Attorney General, we intend to join him in filing suit to protect the resources of the Delaware River Basin.”