Friday, June 24, 2011

More on New York's Hydraulic Fracturing Lawsuit and Disclosure of Fracturing Chemicals

Several weeks ago, I noted that New York's Attorney General had sued the federal government under NEPA.  Attorney General Schneiderman, in a May 31 complaint, argued that the Delaware River Basin Commission (DRBC)--a regional governmental entity that operates under a compact approved by Congress--had erred in failing to complete an environmental impact statement before adopting its proposed regulations that address hydraulic fracturing in the Basin.  (The DRBC has not yet finalized the regulations, although the comment period is closed.)  I noted several interesting questions in that case, including, among others, whether the DRBC is a federal agency or whether there is other sufficient federal involvement in the proposed regulations to trigger NEPA's procedural requirements.  As a follow-up to the "federal" question in the suit, note New York's argument in its complaint:  "The congressional statute approving and effectuating the [Delaware River Basin] Compact on behalf of the federal government designates the DRBC as a 'federal agency.' Pub. L. 87-328, 75 Stat. 688, ยง15(o) (1961)."  New York also argues that the Army Corps of Engineers "is a federal agency with decision-making authority under the Compact."  Further, it claims that other federal agencies such as the Fish and Wildlife Service and National Park Service "have decision-making authority under the Compact" and that the Corps "reports" to the EPA on DRBC "matters."

In other hydraulic fracturing news, Texas has taken an interesting step forward with Governor Rick Perry's recent signing of a bill that requires fracturing companies to disclose to the public the chemicals and volumes of water that they use; the bill anticipates a process by which companies will be able to claim trade secret status for chemicals.  For an excellent discussion on fracturing disclosure and other natural gas matters, see Professor Betsy Burleson's recent Bloomberg interview

-Hannah Wiseman

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