NO STANDING TO SUE: Lawsuits Seeking to Force New York to Complete Impact Review Dismissed

A New York State Supreme Court Justice has dismissed two lawsuits that were filed over the State’s delay in finishing its environmental analysis of shale development and hydrofracking. The lawsuits were led by the Joint Landowners Coalition of New York (JLCNY), a pro-oil and gas leasing group with 70,000 members, and the trustee of bankrupt Norse Energy. Defendants included Governor Andrew Cuomo, the New York State Department of Environmental Conservation (NYSDEC) and the New York State Health Department (NYSDOH).

The litigation sought to: (1) compel the State to finalize its environmental impact assessment, or Supplemental Environmental Impact Statement (SGEIS”), of high-volume hydraulic fracturing combined with horizontal drilling (and also issue a Findings Statement pursuant to the State Environmental Quality Review Act (SEQRA)); (2) find that the NYDOH and its commissioner were proceeding with a health review in excess of their jurisdiction; and (3) find that Governor Cuomo is an “interested agency” for purposes of a SEQRA review. Plaintiffs argued that, absent intervention from the court, they would suffer injury from their inability to develop oil and gas estates.

Plaintiffs pointed to the series of delays in the SGEIS process:

  • The SGEIS was initiated in 2008, when then-Governor Paterson ordered NYSDEC to undertake a supplemental review of hydraulic fracturing combined with horizontal drilling.
  • In 2010, Paterson ordered NYSDEC to conduct a further environmental review, and a draft SGEIS was expected in 2011.
  • In January of 2011, however, Governor Cuomo extended Paterson’s executive order.
  • In July of 2011, a first revised draft SGEIS was released.
  • In September 2011, a second revised draft was issued.
  • A period of public comment and a series of public hearings followed.
  • In September of 2012, NYSDEC Commissioner Joseph Martens asked NYSDOH to assess the potential health impacts of hydraulic fracturing.
  • In February of 2013, NYSDOH requested additional time for its review.

Plaintiffs demanded that Commissioner Marten finalize the report. These lawsuits were filed after no response was issued.

Defendants argue that Plaintiffs all lack a cognizable legal interest and injury-in-fact with the zone of interests governed by the statutes and regulations at issue. Their injuries are economic, not environmental as required by the SEQRA. The court agreed. Judge Roger McDonough held that, because Plaintiffs assert only an economic injury and not an environmental one, the plaintiffs lacked standing to sue to compel completion of the report pursuant to SEQRA. A copy of the decision can be found at: http://www.jlcny.org/site/attachments/article/2073/2014%2007%2014%20Joint%20Landowners%20Coalition%20v%20DEC.pdf

Norse Energy made news earlier this summer. Its predecessor in interest, Anschutz Exploration Corporation, in separate litigation had challenged the Town of Dryden’s zoning amendments prohibiting hydrofracking and other oil and gas exploration activities within the town’s borders. A full discussion of the matter and a companion case can be found here and here. In that case, Norse Energy argued that the zoning amendment was preempted by the Oil, Gas and Solution Mining Law (ECL 23-23-0301 et seq. (OGSML)). The New York Court of Appeals ruled against Norse Energy in July and affirmed the two lower courts that had upheld local zoning ordinances effectively banning hydrofracking.

Plaintiffs may choose to appeal the dismissals. We’ll be sure the revisit the issue in the future.

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