Landowners Sue Cuomo Administration to Compel Fracking Decision

Published April 9, 2014

A coalition representing 70,000 New York landowners filed suit against New York Gov. Andrew Cuomo, claiming the governor and his administration are intentionally obstructing a decision to end the state’s hydraulic fracturing moratorium. 

The Joint Landowners Coalition of New York, representing 70,000 landowners, filed suit on February 14 in state court. The Joint Landowners Coalition seeks to force a decision on whether the state will allow hydraulic fracturing for natural gas.

Nearly Six Years of Delays
Then-Gov. David Paterson (D) initiated the moratorium in July 2008. Simultaneously, Paterson directed the New York Department of Environmental Conservation (DEC) to conduct a Supplemental Generic Environmental Impact Statement on hydraulic fracturing. Paterson said he would consider lifting the moratorium once DEC completed the Environmental Impact Statement and he had an opportunity to consider its findings. The state legislature later imposed its own moratorium while awaiting the results of the Environmental Impact Statement.

Nearly six years later, the DEC has still not issued the Environmental Impact Statement. In 2011, DEC Commissioner Joe Martens said the Department might complete the Environmental Impact Statement by spring 2012. However, in September 2012—more than four years after first being directed to conduct the Environmental Impact Statement—Martens asked the New York Department of Health to study the issue. Martens said he would not produce an Environmental Impact Statement until the Department of Health issued its findings.

In February 2013, Department of Health Commissioner Nirav Shah sent a letter to Martens requesting a few more weeks to study the issue and publish its findings. More than a year later, the Department of Health still has not published its findings and Shah refuses to give a timeframe for when the Department of Health might finish its assessment.

Further delaying the process, Cuomo, a Democrat, released a budget proposal in January 2014 that provides no funds to regulate natural gas production. Even if the Department of Health and the DEC complete their assessments and state officials decide to allow hydraulic fracturing, state officials will not allow hydraulic fracturing to occur until regulations are imposed. Cuomo’s budget proposal extends to March 2015, delaying any regulatory activity until then at the very least.

Economic Revival
The Marcellus and Utica shale formations underlie approximately half of the state, promising newfound wealth and an end to economic stagnation in upstate New York. Frustrated upstate citizens say state officials have had more than enough time to study hydraulic fracturing, which has been conducted in other states for more than half a century.

The Mountain States Legal Foundation, which has supported hydraulic fracturing in western states, is lending a hand to hydraulic fracturing proponents in New York.

“MSLF has been involved in litigation in defense of landowners from coast to coast and border to border for decades. I personally have followed landowner issues in upstate New York for years,” Mountain States Legal Foundation President William Perry Pendley said.

“The people I have heard from in upstate New York are thrilled that they may be able to require the governor and other state officials to adhere to the law and to complete the study to permit them to develop local energy resources,” Pendley added.

The suit raises several challenges to the ongoing review. Among these, the suit contests DEC’s decision to refer the issue to the Department of Health and claims Cuomo is interfering with the DEC’s independent decision-making authority.

Putting Politics Ahead of Science
“It is apparent to the world that Gov. Cuomo is dragging out the SGEIS process for his political purposes instead of focusing on his upstate New York constituents, many of whom struggle to survive in the worst economic conditions in our nation,” Joint Landowners Coalition President Dan Fitzsimmons said in a press release.

“Hydraulic fracturing (HF) has been used for more than six decades and is a safe, effective, proven technique for developing oil and gas resources. Some 95 percent of American gas wells use hydraulic fracturing,” said Pendley.

“The development of energy resources, including the use of hydraulic fracturing, is regulated by state governments, including New York,” Pendley explained. “Just as significantly, MSLF believes that landowners should be able to use their private property, including by developing the energy resources that they own.”

Alyssa Carducci ([email protected]) writes from Tampa, Florida.