Litigation

A river has no right to defend itself in a court of law, so the Delaware River needs attorneys who are willing and able to pursue legal action on behalf of the River and its affected communities. A river’s needs too often go undefended and its enemies unchallenged due to lack of access to legal and scientific resources needed to effectively take on the challenge. In the Delaware River Watershed, Delaware Riverkeeper Network has stepped up to defend and give voice to our treasured Delaware River.

But pursuing litigation requires a strong voice, effective legal counsel, and well informed experts, data and information. We have in place a strong, educated, committed and professional legal team here at Delaware Riverkeeper Network to ensure our ability to rise to these challenges with bold advocacy and solid legal action whenever necessary to stop them. The Delaware Riverkeeper, serving as lead client and voice for the Delaware River, works with our River Resources Law Clinic to build the strongest possible cases — ones that protect the River and set valuable precedent for its future protection. It is the ability to walk into the courtroom at a moment’s notice that so often has helped us to achieve our river protection goals.

Current Litigation

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Dredging

 

Delaware Deepening

Delaware Riverkeeper, et. al. v. US Army Corps of Engineers, Civ. No.: 3:09-cv-05591

In October 2009, the Army Corps announced a Notice to Proceed with the Delaware Deepening project.  In November 2009, the Delaware Riverkeeper Network led four other citizen environmental organizations – National Wildlife Federation, New Jersey Environmental Federation, Delaware Nature Society, Clean Water Action in Pennsylvania – to file suit in Federal District Court in New Jersey against the Delaware deepening proposal.  DRN and the groups also filed a motion in Delaware District Court to intervene in and support the legal action brought against the deepening by the State of Delaware, including a motion for a preliminary injunction.       
When the Army Corps announced that it was going to proceed with the Deepening project at this time, it was announcing its arbitrary and capricious intent to violate the Administrative Procedures Act, based on non-compliance with no less than 6 federal environmental and community protection laws as well as state environmental and community protection laws. 
 
In addition to being a flagrant violation of state and federal law, the Notice to Proceed and related action by the Army Corps (supported by Pennsylvania) to move forward with the deepening without needed Delaware and New Jersey permits and approvals is a stripping of state environmental protection authority that cannot be allowed to stand.

While DRN fully supported (and indeed advocated for) legal challenges by New Jersey and Delaware, DRN did not believe the states’ legal challenges fully represented all of the legal violations, nor did the states represent all the interests that DRN and its partners bring to bear on the issue.   New Jersey’s action was broader than Delaware’s and included more environmental claims to be sure, but neither included the full array of environmental harms that is included in the Delaware Riverkeeper Network litigation, and it is impossible to know how the states will proceed strategically.   Further, DRN represents a holistic view of the watershed and the protection of the River and environments, not based on political boundaries, but on their importance to our members and the citizens of the region.

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Harmful Development

 

Floodplain Development

Bus Terminal, Parking Garage, Commercial and Condominium Development

The Federal Transit Administration decided to partially fund a 12-story bus terminal, parking garage, commercial and condominium development in the floodplain of the Delaware River in the Easton, PA historic district. DRN filed suit claiming violations of NEPA and E.O. 11988 (limitations on floodplain development). In response, FTA revoked its categorical exclusion from NEPA determination and has begun to prepare an environmental assessment but the local agency constructing the project has asserted that it can move forward with construction without federal funds, which would be used later to reimburse the costs of construction. Motion for preliminary injunction was filed and a hearing was held December 13, 2007; a decision is still awaited. Additionally, DRN has submitted substantial comments and documentation demonstrating the gross inadequacy of the draft EA, which eliminates from consideration all alternative locations.

 

Stormwater

Highways, Significant Source of Water Quality Degradation

Highways are among the most significant sources of water quality degradation, especially due to their secondary, sprawl inducing effects. The Clinic is addressing the negative impacts of roads and other infrastructure in the watershed. Most recently on this front DRN joined Buckingham Township in suing the Pennsylvania Department of Transportation for a proposal for an oversized and environmentally damaging highway, resulting in a substantial scaling back of the project and other improvements. DRN submitted an amicus brief supporting an appeal by Buckingham Township seeking attorneys fees, which resulted in a landmark decision by the PA Supreme Court confirming that Pennsylvania law strongly favors the awards of attorneys fees to plaintiffs in such cases and rejecting the U.S. Supreme Court's restrictive federal law precedent in Buckhannon. DRN sought leave to participate in the remand proceedings before the PA DEP Environmental Hearing Board and filed documents to secure attorneys fees. Our attorney fees request was ultimately denied.

Additional Litigation :  1 2