Today, the Joint Landowners Coalition of New York ("JLC") sued the State of New York relative to its ongoing environmental review of high-volume hydraulic fracturing ("HVHF") combined with horizontal drilling that has been ongoing in New York for almost six-years.
Specifically, the JLC filed a lawsuit in New York State Supreme Court, Albany County, against New York Governor Andrew Cuomo, the New York State Department of Environmental Conservation ("NYSDEC"), NYSDEC Commissioner Joseph J. Martens, the New York State Department of Health ("NYSDOH") and NYSDOH Commissioner Nirav Shah seeking an order compelling finalization of the Supplemental Generic Environmental Impact Statement ("SGEIS"). The JLC’s lawsuit also seeks, among other things, to have Governor Cuomo’s records relative to the SGEIS process opened for public scrutiny and an order requiring Governor Cuomo to cease and desist from further interference in the SGEIS process.
The heart of the JLC’s lawsuit is that the now almost six-year SGEIS process is being held up for political reasons and not based on the science. It asserts that the SGEIS process has been replete with blown deadlines and persistent delay, all of which has created a regulatory environment that has rendered the JLC and its members unable to realize any economic benefit from their oil and gas estates. The JLC also maintains that New York’s State Environmental Quality Review Act ("SEQRA") requires the NYSDEC to expedite the SGEIS process in the interest of prompt review and with minimal procedural and administrative delays and that the now more than five-and-a-half year delay in completing the SGEIS process is legally unjustifiable.
The JLC also takes issue with the September 2012 delegation by the NYSDEC and Commissioner Martens to the NYSDOH and Commissioner Shah requesting additional review of the potential health impacts of HVHF and contends that the "referral amounts to nothing more than an excuse to further delay a process that has already been prolonged for a patently unreasonable and unjustifiable amount of time."
Notably, Governor Cuomo does not escape the JLC’s litigation attacks. The JLC takes aim at Governor Cuomo’s role in the SGEIS process and asserts that "since taking office in January 2011, Governor Cuomo has injected himself in the SGEIS Process, controlled its progression, and precluded the [NYS]DEC and Commissioner Martens from independently exercising their discretionary decision-making authority[,] despite having no approval authority under SEQRA. It also maintains that his role in controlling the SGEIS process de facto makes him an "Interested Party" under SEQRA such that his records relative to the SGEIS process must be made available for public review.
Finally, the JLC argues that the State’s conduct in delaying the SGEIS process is in direct violation of these public policies. In particular, the JLC points to the stated energy and environmental policies of New York State "to promote the development of indigenous oil and gas resources, including Devonian shales, prevent waste of those resources, protect the correlative rights of all mineral owners, and complete review of well permit applications ‘as expeditiously as possible.’"
The fate of the JLC’s claims, as well as that of Norse Energy which recently filed a similar lawsuit, is now in the hands of the state courts. One can surmise that New York will vigorously defend against the JLC’s lawsuit and, with a return date of March 7, 2014, it will not be long before we hear the State’s position. From then, it will be up to whichever state court justice is assigned the case to decide whether five and a half years of environmental review is long enough and whether politics, and the unending attacks from the environmental community, has impermissibly delayed a process that should have been completed long before Governor Cuomo took office in 2011.