In mid-2008, the New York legislature passed regulations covering high volume hydraulic fracturing. Then-governor David Patterson ordered the DEC to conduct an environmental evaluation of fracking and horizontal wells and ordered the well approval process halted until the study was completed which was anticipated to be November 2009. A draft report was published in September 2009, but the DEC spent more than one year reviewing public comments. In December 2010, Patterson issued an executive order requiring further environmental review. Gov. Andrew Cuomo kept the order in place when he took office. In September 2012, the DEC and the Department of Health began a study of the health impacts associated with hydraulic fracturing. At a news conference on December 16, 2013, Gov. Cuomo and Dr. Nirav R. Shah, the New York State Health Commissioner, stated that there was no time-line to complete the study. Gov. Cuomo said, “My timeline is whatever commissioner Shah needs to do it right and feel comfortable.” The governor said he did not want “to put undue pressure on them that would artificially abbreviate what they’re doing.”
With no deadline in sight, on February 14, 2014, a group of more than 70,000 landowners and several other individual landowners filed a lawsuit against Gov. Cuomo, the DEC, the New York Department of Health (DOH), and Dr. Shah, complaining that the failure to finalize the supplemental generic environmental impact statement (SGEIS) has prevented them “from developing their mineral estates…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 Amended to the United States Constitution.” The petitioners seek an order compelling completion of the SGEIS within a court-ordered deadline. They argue that Gov. Cuomo has exceeded his authority by orchestrating the delay in the SGEIS process and that the referral to the DOH was arbitrary, capricious, and an “improper delegation of the DEC’s substantive and procedural Lead Agency responsibilities” as required by the State Environmental Quality Review Act.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
