Caving In To Fackers: Feds Move to Dismiss NY Lawsuit Aimed at Protecting the Drinking Water of 15 Million Americans


In a brazen pro-industry legal maneuver, the U.S. government has obtained permission from a federal judge to move to dismiss a lawsuit in New York that represents the last line of defense in protecting the drinking water of 15 million Americans. New York Attorney General Eric Schneiderman filed a lawsuit against federal regulators on May 31 seeking a thorough examination of the negative impacts of hydraulic fracturing, or “fracking,” on drinking-water supplies in the Delaware River Basin (see link to my previous post below).

Apparently, the feds believe it’s overkill to conduct a complete environmental impact review on an industrial process that has been tied to drinking-water contamination, exploding wells, hundreds of millions of gallons of radioactive wastewater and earthquakes. Did I mention that the safety of the drinking water of millions of Americans hangs in the balance?

As you likely know by now, fracking is a process that extracts natural gas from shale rock formations deep beneath the earth’s surface. Frackers inject highly pressurized fluid – water, sand and a mixture of toxic chemicals – into the ground to create cracks and fissures in shale formations thereby releasing the oil and gas contained inside. Fracking chemicals – along with naturally occurring radioactive materials, like radium, brought to the surface with the gas – can contaminate nearby aquifers, rivers and streams.

Here’s the quick and dirty on the situation in New York, according to an Aug. 11 Bloomberg report:

New York Attorney General Eric T. Schneiderman sued federal agencies May 31, saying the Delaware River Basin Commission has proposed regulations that will allow hydraulic fracturing, known as fracking, at 15,000 to 18,000 gas wells without a full environmental review, affecting the drinking water of 9 million New Yorkers [and millions from other neighboring states].

A judge ruled Wednesday (8/10) that the federal government can “advocate for dismissal” of the suit – and the feds plan to do so (in a shameless display of pandering to their industry bedfellows). More from Bloomberg:

The U.S. said in court papers it plans to ask for dismissal of the case on the grounds that the state can’t prove injury and doesn’t have the right to sue federal agencies.

Some of us might argue, rather convincingly I think, that known risks associated with fracking should be enough to compel government officials to put processes in place, such as mandatory full environmental impact reviews, to protect citizens from these documented dangers before injuries and illnesses occur.

Or should we just go ahead and let the frackers shoot first and ask questions later?

It’s important to remember that the attorney general isn’t suing to shut down fracking operations, but simply to ensure that a full environmental review is: (a) conducted; and (b) shows that fracking will not endanger public health or the safety of drinking-water supplies. Are those such outrageous requests? I think not, particularly when we know what we know.

Here are a few of the more salient points in support of a full environmental impact review in the Delaware River Basin (and wherever else fracking is being considered):

1. Methane Contamination and Flammable Tap Water: A study from Duke University released in May found methane levels 17 times higher in drinking-water wells near fracking operations compared to wells in nonfracking areas (see link to my previous post below). From the study, entitled “Methane contamination of drinking water accompanying gas-well drilling and hydraulic fracturing”:

Methane concentrations were detected generally in 51 of 60 drinking-water wells (85%) across the region, regardless of gas industry operations, but concentrations were substantially higher closer to natural-gas wells. Methane concentrations were 17-times higher on average in shallow wells from active drilling and extraction areas than in wells from nonactive areas.

Even the researchers were surprised by the direct correlation. According to one of the study’s authors, biology professor Robert Jackson: “We certainly didn’t expect to see such a strong relationship between the concentration of methane in water and the nearest gas wells. That was a real surprise.”

In Dimock, Pennsylvania, where the Duke researchers gathered data, some residents’ drinking-water wells blew up or their water could, literally, be lit on fire.

2. Aquifer Contamination Documented in EPA Report: Industry officials have long argued that fracking not only has not, but cannot, contaminate drinking-water supplies because the toxic chemicals used in the process are injected thousands of feet deeper than the level of traditional aquifers. That argument ignores the geological realities of fracking.

Drilling companies employ fracking in old oil fields – many that were drilled before fracking was first utilized by Halliburton in the late 1940s – where the geological landscape has already been compromised by a network of oil wells. Although those old wells have been plugged, leaky well casings at the earth’s surface and faulty cement jobs can provide a direct conduit for toxic fracking fluids to seep back up to the relatively shallow level where drinking water wells reside. So, in reality, shale formations and drinking water wells are not separated by “solid rock,” as frackers would have us believe, but rather separated by rock riddled with the passageways of old wells.

Earlier this month, the New York Times discovered what amounts to the Holy Grail of the anti-fracking movement – a documented report of an aquifer being contaminated by the fracking process (see link to my previous post below). It’s a case from West Virginia that appears in a 1987 EPA report:

The report concluded that hydraulic fracturing fluids or gel used by the Kaiser Exploration and Mining Company contaminated a well roughly 600 feet away on the property of James Parsons in Jackson County, W.Va., referring to it as “Mr. Parson’s water well.”

“When fracturing the Kaiser gas well on Mr. James Parson’s property, fractures were created allowing migration of fracture fluid from the gas well to Mr. Parson’s water well,” according to the agency’s summary agency of the case. “This fracture fluid, along with natural gas was present in Mr. Parson’s water, rendering it unusable.”

3. Fracking Operations Tied to Earthquakes: Geologists have tied fracking wastewater disposal wells in central Arkansas to an outbreak of more than a thousand minor earthquakes (but earthquakes nonetheless). At least one startled resident is suing the responsible gas companies for the significant damage one of those earthquakes caused to his home. According to the Arkansas Geological Survey (AGS), the fracking operations were taking place on top of an active fault line. Really? Let me guess, a full environmental impact review wasn’t conducted (see link to my previous post below).

AGS official Scott Ausbrooks reported that a lattice of subsurface cracks and fissures provided passageways for the fracking fluids to reach the fault and cause the earthquakes. The quakes, all registering below 4.7 in magnitude, began rolling across the countryside after the injections began. After operations were suspended, the number of earthquakes dropped by two-thirds. Consequently, the Arkansas Oil and Gas Commission recently voted to ban fracking wastewater disposal wells within a 1,150-square-mile area north of Conway in the Fayetteville Shale region.

Surely the federal government understands the well-documented risks involved. But did I mention that hundreds of millions in potential profits for the oil and gas industry hang in the balance? More from Bloomberg:

The lawsuit might shut down gas development in the Delaware River Basin “for many years to come,” according to court papers filed by trade groups representing oil and gas companies that hold natural gas leases in New York State. The Marcellus Shale, which lies beneath parts of New York, Pennsylvania, Ohio, Maryland, West Virginia and Virginia, has an estimated 400 trillion cubic feet of natural gas, one of the largest such formations in the world, the trade associations said.

And this from the Bloomberg report:

Trade groups [for the oil and gas industry] have standing to file briefs on the U.S. motion to dismiss the case while they seek more formal status to intervene, [District Judge Nicholas G. Garaufis said].

The U.S. said in court papers it plans to ask for dismissal of the case on the grounds that the state can’t prove injury and doesn’t have the right to sue federal agencies.

The American Petroleum Institute, the Independent Petroleum Association of America and the US Oil & Gas Association said they asked to intervene in the case to support that argument because their members – pipeline operators, natural gas producers and other businesses – could be economically affected.

Once again, we see the federal government caving under industry pressure. It’s all about campaign contributions. And for those of you who feel that allegation sells our elected officials short, consider this from a Jan. 14, 2011 ProPublica report entitled, “Opponents to Fracking Disclosure Take Big Money From Industry”:

[I]f money is an indicator, the anti-regulatory group has the upper hand. A back-of-the-envelope analysis of campaign finance dollars contributed to the members of Congress who are speaking out on the issue shows that the Natural Gas Caucus received 19 times more money from the oil and gas industry between 2009 and 2010 than the group who signed Rep. Hinchey’s letter (in support of tougher regulation).

Consequently, taking a stand against fracking (i.e., Big Oil and Gas) is a major financial decision, as well as a political one, for many lawmakers. And that’s a decision many politicians aren’t willing to make when their re-election is on the line.

Stay tuned, we’ll be following this story to the bitter end.

Read the full Bloomberg report here:

Read my post on the groundbreaking Duke study that ties fracking to methane-contaminated water wells and flammable tap water:

Read my post on the EPA report that ties fracking to drinking-water contamination:

Catchup on fracking-related earthquakes in Arkansas here:

© Smith Stag, LLC 2011 – All Rights Reserved


  • I was just up in to tippy top of the marellus shale sites from Wayne County PA into New York at Deposit, Sanford, and Hamcock.
    Homes are regentrifying, the high school is being remodeled,and they see life ebing pumped back into their dying community.
    Problem is – the drinkig water is laced with th nethane. Animals are flaling prey to immune diseases sparked by the contaminated water, and the fiedls adn crops are taking it into the vegetation, which s eaten by locas and visitors. So it will take time to see the resideual effects.
    I have a dog who drank this water and reacted by having her spleen attack her red blood cells as well as the invading cells. 1 year asnd $10,000 later she is alive because of chemo drg therary, but her kidneys are gone.
    We hve a well, and we do not trust it so all of our water is bottled for safety.
    How can common sense not prevail here? How can common dcency not prevail? To look the other way is to shoot ourselves in the foot.

Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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