On August 4, 2011, the Delaware Riverkeeper and others sued the Delaware River Basin Commission (“DRBC”) and the Army Corps of Engineers to prohibit the DRBC from finalizing fracking rules without first complying with NEPA. See Delaware Riverkeeper Network v. Army Corps of Engineers, No. CV11-3780 (E.D. N.Y.). NEPA prohibits “major federal actions” which could significantly affect the quality of the human environment absent either a finding of no significant effect (a so-called “FONSI”) or an environmental impact statement (“EIS”). The plaintiffs allege that the DRBC is a “federal agency” for NEPA purposes. They sued the Corps of Engineers because statutorily it is required to supply federal funds to the DRBC and because it had “approved” the release of the draft rules.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.