Bloomberg BNA – A coalition of property owners announced Jan. 31 that it will sue New York state over its delay in issuing a long-awaited environmental impact statement on hydraulic fracturing unless the state provides a reasonable timeline by Feb. 13 for finalizing the process.
The lawsuit would be the second of its kind to compel the Department of Environmental Conservation to issue a supplemental generic environmental impact statement (SGEIS) on fracking.
In the first instance, the bankruptcy trustee of Norse Energy Corp. USA filed suit in December 2013 in state Supreme Court in Albany County.
The Joint Landowners Coalition of New York and three private landowners from central New York threatened the second lawsuit in a Jan. 31 letter to DEC Commissioner Joseph Martens.
Violation of State Law Alleged
The letter said the DEC is in violation of the State Environmental Quality Review Act (SEQRA) and the state Environmental Conservation Law by failing to issue the SGEIS in a timely manner and by improperly delegating its authority to the state health commissioner.
“SEQRA contains explicit timeframes to bring the environmental impact review process to completion,’’ according to the letter to Martens from Scott R. Kurkoski, an attorney with the Binghamton, N.Y., firm of Levene, Gouldin & Thompson LLP. “The DEC may not refuse to complete the SGEIS process indefinitely.’’
Emily DeSantis, a spokeswoman for DEC, told Bloomberg BNA that “we do not comment on potential litigation.’’
The letter comes two days after Martens told a legislative hearing that the state isn't expected to take any action during the 2014-2015 fiscal year to permit fracking.
Health, Safety Review
The threatened lawsuit stems from a decision to delay the SGEIS until state Health Commissioner Nirav Shah issues a finding on the health and safety of fracking. Martens has said he wouldn't approve a final environmental impact statement for fracking until the health study is complete.
The landowners coalition was joined by the Kark Family Trust, which holds an oil and gas lease with Chesapeake Energy Corp.; Schaefer Timber and Stone LLC, which has an oil and gas lease with the bankrupt Norse Energy Corp. USA; and LADTM LLC, a limited liability company of which Schaefer is a member.
The Mountain States Legal Foundation, a group based in Lakewood, Colo., is also representing the potential plaintiffs in the case.
In its letter, the landowners said the “courts have confirmed that finishing the SEQRA process is not discretionary, nor can the process be held in abeyance for political reasons or other reasons unrelated to the objectives of the environmental review.’’
“To the extent that the DEC continues to defer to the [Department of Health] and refuses to finalize the SGEIS, such action is arbitrary and capricious and amounts to an improper delegation of the DEC's lead agency responsibilities,’’ the letter said.