Wednesday, June 1, 2011

NY AG Sues About DRBC Drilling: Law Professors Huddle

New York Attorney General Eric Schneiderman filed suit yesterday claiming that the Federal Government has a duty to conduct an environmental impact study before any decision about gas drilling within the Delaware River Basin can be made.

The Delaware River Basin Commission has 5 commissioners.  Four of the 5 represent states--NY, NJ, PA, Delaware--and not the federal government.  The fifth commissioner does represent the federal government.

Decisions of the DRBC are made by a majority vote of the 5 commissioners.  DRBC itself was organized through an act of Congress.  DRBC funding comes from the federal and state governments as well as other sources.

So what does that all add up to under the National Environmental Policy Act?  Does it mean that the DRBC cannot act without first doing a full environmental impact study under NEPA? 

These questions posed by the lawsuit have increased uncertainty and legal risk.  That is certain. 

But what is the legal prognosis for the NY AG suit?  Will it win or lose?  And what happens while the wheels of justice grind?

I would welcome all comments but particularly on the legal issues presented by this legal action.


  1. John,

    The most revealing thing about this filing is that NY AG Schneiderman didn't directly sue the DRBC.

    Instead, he named the Army Corps, Fish and Wildlife, the Park Service, the Interior Dept., and the EPA. Four out of five of these federal agencies have no role whatsoever in the DRBC, and the fifth -- the Army Corps -- holds one of five voting seats, the rest being states, including New York.

    So what's all this about?

    This is about Schneiderman flinching in recognition that -- despite all his campaign promises -- he's not allowed under the canons of his profession to do anything which ranks as essentially suing his own client, the State of New York.

  2. Since DRBC was not named as a defendant, does that mean in your view the suit cannot stop DRBC from acting on its proposed drilling rules?

  3. Yes -- to borrow a favorite phrase from the anti-drilling rhetoricians -- this suit is "fatally flawed."

    Schneiderman's people know this.

    They're just fulfilling his need to posture politically, since he made such a federal case out of it, while campaigning.

  4. Rule 11 of the Federal Rules of Civil Procedure is not something with which to mess.

    Politicians fooling people is nothing new. Federal Judges can react badly to lawyers waisting their time.

  5. Andy:

    Thank you for the helpful comments. The failure to name the DRBC is telling. Sorry for the belated response.

  6. uh.. isn't in fact true that the Army Corps of Engineers are the ones who denied Schneiderman's request for an EIS? Therefore, why would he sue the DRBC themselves? Deluca, the Rep for the Army Corp of Engineers said he was denying his request for an EIS based on Federal Law. So Schneiderman is correct in suing the Army Corp of Engineers. Am I wrong?