Lawsuit Filed to Compel New York State to Complete Final Fracking Assessment

Although we routinely blog on the vast amount of studies reported by various groups across the country addressing the environmental and health impacts of hydraulic fracturing (“fracking”), according to a group of landowners, the state of New York is one entity that has delayed for over five years in issuing a decision on the safety of fracking.  Just last week, the Joint Landowners Coalition of New York, Inc., the Kark Family 2012 Trust, LADTM, LLC, and Schaefer Timber & Stone, LLC filed an Article 78 petition seeking to compel Governor Cuomo, the New York State Department of Environmental Conservation (“DEC”), the New York State Department of Health (“DOH”) and its commissioners to issue the final impact statement addressing the environmental and health effects of fracking and render a final decision as to whether fracking will be permitted in the State.

In the verified petition and accompanying memorandum of law, Petitioners allege that the environmental impact statement process began back in July of 2008 when then-Governor Paterson directed the DEC to engage in an environmental review of fracking.  In September 2009, the DEC and the DOH published draft findings and received public comments, which it claimed to be reviewing for over a year.  In December 2010, then-Governor Paterson issued an order requesting further environmental review and a revised draft, which prevented the DEC from issuing well permits.  In July 2011, the first revised draft was published, and the DEC concluded that fracking could take place safely with strong regulatory controls.  Rather than commencing review of public comments on the draft, however, the DEC instead hired an independent consultant to further review the impacts of fracking.  In September 2011, a second revised draft was issued, which contained new proposed mitigation measures described by the consultant.  Indeed, the DEC commissioner confirmed at a town meeting that the DEC had considered the public health impacts and that the regulatory controls set forth would prevent any potential contamination from fracking.  Despite the fact that the public comment period closed more than two years ago, the final impact statement has still not been issued.  Furthermore, as reported in Bloomberg news last month, the DEC commissioner stated that “[w]e have absolutely no plans to” issue fracking regulations until at least April 2015.

Petitioners argue they have been harmed as a result of these delays since they have been unable to exercise their rights to extract, lease or profit from their estates.  Petitioners claim that the DEC has failed to meet mandated deadlines and failed to act in accordance with the State’s official energy policy.  Furthermore, the petitioners claim that the DEC commissioner’s decision to refer to the DOH for review was arbitrary and capricious, an abuse of discretion, and in direct violation of the agency’s responsibilities.  Finally, Petitioners state that Governor Cuomo must be ordered to cease delaying completion and interfering with the DEC’s authority to issue fracking decisions.

We will continue to monitor this litigation and report back with any new updates on the status of fracking in the state of New York.