New Yorkers Wait for Rules on|Fracking – and for Mr. Godot | Courthouse News Service
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New Yorkers Wait for Rules on|Fracking – and for Mr. Godot

ALBANY, N.Y. (CN) - Landowners sitting on potentially lucrative "mineral estates" want a judge to order state officials to stop dragging their feet and complete long-awaited rules for fracking in New York.

The regulations, in development for 5½ years, are needed before permits can be issued for horizontal drilling and high-volume hydraulic fracturing of underground shale formations.

The process involves pumping a mix of sand, water and chemicals under high pressure into deep wells to force the natural gas held there toward the surface. Opponents claim the process can pollute groundwater and even cause earthquakes.

Delay of the rules "has prevented petitioners from developing their mineral estates in New York or otherwise leasing or conveying their mineral estate, all of which has been detrimental and contrary to environmental and energy policies in the State of New York and the guarantees found in the Fifth and Fourteenth Amendments to the United States Constitution," the plaintiffs claims in a 41-page lawsuit in Albany County Supreme Court.

Named as defendants are Gov. Andrew Cuomo, the New York State Department of Environmental Conservation and Commissioner Joseph Martens, and the state Department of Health and Commissioner Nirav Shah.

Lead plaintiff, the Joint Landowners Coalition of New York, claims that Martens and his agency are responsible under state law for developing the regulations, but the governor has thrust himself into the process and enlisted the Department of Health to delay the rules "for political reasons unrelated to the merits" of the process and its completion.

Groups opposed to fracking, citing health and environmental concerns, have protested at the state Capitol and at Cuomo's State of the State address this year. They have delivered to the governor hundreds of signatures on anti-fracking petitions.

The Joint Landowners Coalition of New York is a Binghamton-based nonprofit that promotes natural gas development. Co-plaintiffs are three Broome County landowners thwarted by the rules' delay in exercising their mineral estates: the Kark Family 2012 Trust, LADTM LLC and Schaefer Timber & Stone.

The coalition claims to represent the interests of more than 70,000 owners of 1 million acres in 14 New York counties.

The lawsuit contends that oil and gas drillers interested in employing fracking to get at deposits in the Marcellus Shale began to seek out leases with landowners in New York's Southern Tier - near the Pennsylvania border - beginning in 2008.

The Marcellus formation stretches from Ohio to West Virginia and contains an estimated 500 trillion cubic feet of natural gas.

Due to driller interest, then-Gov. David Paterson asked the Department of Environmental Conservation to assess the use of multiple well pads and fracking to get at the gas and to develop rules to govern the process, according to the lawsuit.

That stopped the agency's processing of well permits, and led to a statewide moratorium on shale development that continues today, the lawsuit contends.

Time and again, it says, every deadline set for getting the rules in place was missed, leaving the plaintiffs "unable to realize any economic benefits from their oil and gas estates."

The Kark trust, for instance, claims it had an agreement with Chesapeake Energy Corp. to tap shale gas in the town of Fenton, near Binghamton, but the delay in fracking rules meant the company could not get state permits to drill and the trust did not see any royalty payments, according to the lawsuit.

The plaintiffs claim the regulations would be in place already, under a review process known as SGEIS, or supplemental generic environmental impact statement, were it not for Cuomo.

"Since taking office in January 2011, Gov. Cuomo has directly controlled if and when the SGEIS process will be completed and whether or not HVHF [fracking] will be allowed in New York," the plaintiffs say.

They say the governor stepped in each time the Department of Environmental Conservation was ready to release the rules, and got the Department of Health involved in an extended evaluation of possible health effects from fracking when the agency had no statutory role in the review.

The lawsuit describes the two agencies and their commissioners as "under pseudo gag-orders" from Cuomo, which has delayed the regulations.

A spokeswoman for the Department of Environmental Conservation could not be reached for comment.

The plaintiffs want the court to compel the Department of Environmental Conservation to finalize the new rules and to prohibit the Department of Health from causing any more delays. They also want Cuomo directed to "cease and desist from further interference in the SGEIS process."

The plaintiffs are represented by Scott Kurkoski of Levene, Gouldin & Thompson in Vestal, with assistance from The Mountain States Legal Foundation in Colorado.

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