Landowners finish NY fracking lawsuit, await funds to file (UPDATED)

18

A draft lawsuit from a pro-drilling landowners group claims Gov. Andrew Cuomo has arbitrarily delayed a decision on hydraulic fracturing for no “valid, rational or legally defensible reason.”

In a newsletter sent to its members Tuesday, the Joint Landowners Coalition of New York sent out the lawsuit it intends to file against the state, Cuomo and the commissioners of the Health and Environmental Conservation departments. But the group is trying to raise additional money to help fund the challenge before it sues, according to the letter.

The legal document takes Cuomo to task for repeatedly delaying a decision on large-scale fracking, claiming the delays violate state law and amount to an unconstitutional government “taking” of land rights.

Fracking has been on hold in New York since 2008, when the state Department of Environmental Conservation first launched the Supplemental Generic Environmental Impact Statement, a lengthy review process that is meant to guide a drilling decision. That document is currently under review by state Health Commissioner Nirav Shah.

“Governor Cuomo has arbitrarily prevented the DEC from issuing the final SGEIS and granting permits for HVHF for reasons based exclusively on political concerns and without any good faith, valid, rational, or legally defensible reason,” the draft lawsuit claims.

The Binghamton-based landowners group has threatened the lawsuit for months as the state’s fracking review has stretched into its sixth year. Earlier this year, the coalition hired Robinson & Cole LLP, a national firm that specializes in eminent domain cases.

Specifically, the draft suit claims New York’s extended review of fracking violates the State Environmental Quality Review Act, or SEQRA, which requires state agencies to complete reviews with “minimum procedural and administrative delay.”

The group also claims the Cuomo administration has violated SEQRA by essentially deferring the state Department of Environmental Conservation’s decision-making process to Shah and the Department of Health, despite the DEC being the lead agency for the review.

There was no immediate comment from the DEC. Several environmental groups and opponents of fracking sent a letter to Cuomo earlier this month thanking him for keeping the fracking moratorium in placing, saying they “greatly appreciate … that science dictates any decision.”

The lawsuit, which is expected to be filed in state Supreme Court in Albany, seeks to either force the Cuomo administration to act or have the fracking moratorium thrown out, calling it “illegal, unconstitutional, and otherwise void and unenforceable.”

If the moratorium remains in place, the suit claims it amounts to landowners being “unconstitutionally deprived plaintiffs of their property rights” and asks the court to force the state to compensate them.

The draft document doesn’t identify the plaintiffs by name but does say they are Southern Tier landowners. The plaintiffs will be identified when the lawsuit is officially filed, according to the group.

In the newsletter, which solicits donations to help pay for its legal team, Joint Landowners Coalition President Dan Fitzsimmons said the group is hoping to advance the lawsuit to prove the fracking process has been intentionally delayed. He said the coalition’s attorneys have put more than 300 hours into researching the law and putting the suit together.

“Once discovery begins in the litigation process, we are certain that we will reveal what we all know — that the state has deliberately delayed the SGEIS,” Fitzsimmons wrote.

UPDATED: Alex Beauchamp, northeast region director for Food & Water Watch and a spokesman for New Yorkers Against Fracking, questioned the reasoning for the suit, claiming the landowners are ignoring the negative impacts of fracking.

“The Joint Landowners Coalition should tell the people in other states who have gotten ill and whose water has been contaminated that there’s no reason to stop fracking,” Beauchamp said. “The gas industry is putting their profits over our health by recklessly denying the documented science, which shows fracking poisons water and makes people sick.”

NYS Complaint.pdf

Share.

About Author

18 Comments

  1. An eminent domain or taking claim is silly. No one has taken anything. The land can still be farmed or used for other profitable purposes, and traditional gas wells can still be drilled with far less likelihood of damage and health risks to neighbors.

    We all share the land, air, and water, and it is correct to follow a process that will protect the rights of all.

  2. Hugh’s comments are typical of the misinformation demonstrated by the anti-gas NIMBY obstructionist contingent masquerading as “environmentalists”. As a landowner, the benefit I can derive from my land most certainly has been taken. No farming, logging, stone quarrying, wind farming, solar farming, or any other possible use, can possibly reward me and my community like developing our NG can while still conserving the natural state of the land that I have been striving for as I develop my land into a diverse, natural habitat for hunting, fishing, and wildlife support. Traditional wells will require 10-16 times the distrubance to land that HVHF techniques will require. HVHF mitigates risks more than traditional techniques. The fearmongering over damage and health risks has been proven to be unfounded. Nobodies rights or health is adversely impacted by HVHF any more so than they are by any other endeavor currently practiced in society. There are far greater threats to our rights and health than HVHF that the anti-gas activists conveniently and hypocritically ignore. HVHF is the NG development process that best protects the air, land, water, and rights we all share. As the JLCNY’s complaint seeks to motivate, it is time for our dithering, delaying, ineffective so-called “governor” to make a choice and allow the state to move ahead. Right now he seems to be doing nothing more than pissing off both pro and anti-gas people alike and everybody suffers as a result of his inaction.

  3. NY Landowner: If we are supposed to pity you because you pay property taxes, I guess I should be feeling sorry for the rest of us too, since people opposed to fracking also pay them. The difference is that we’re not willing to put our trust in the oil and gas drillers who have repeatedly lied about the damage they cause. They engage in the classic divide and conquer strategy and pit us against our neighbors so they can continue to make record profits. Why do you trust them?

  4. No doubt in very short order some J### A######## will come on here writing that the JLCNY complaint denies the science and threatens our health and communities, and that New York must listen to the science and the medical community and thus not allow not fracking.
    Nothing could be further from the truth. The JLCNY has studied the science and history of natural gas development and found that it has been performed safely in over 1.3 million cases across the nation and that the process is continually being improved to be safer. They have determined that best management practices and regulations can make it safer, just as the FAA’s regulations and oversight do for air travel. No credible threat to our health or communities exists. Infact, long term health studies in Austrailia found gas field workers were at no greater risk than the general population. The science, facts, and history clearly show us that NG development (and HVHF as part of that) is as safe and beneficial endeavor as possible, and perhaps even safer and more beneficial than many we currently use (like coal mining and use!) the use of NG has allowed our air quality to improve to being the best it has been in over 20 years.

  5. Heidi Gogins it is not the industry that pit neighbor against neighbor it was Josh Fox and his propaganda films…it was the Mountain Keepers and NYRAD feeding to people like you to inept to research real facts misinformation on their own self seving web sites… Josh Fox only went from pornographer to “pretend envirionmentalist” because he saw the opportunity to cash in on the fear of anti progressives such as yourself

  6. Heidi Ho!
    The issues you raise are exactly why repsonsible landowners joined ranks in coalitions and the JLCNY came to be, to offer an effective, collective counter balance to the landmen and established predatory leasing practices. Where as the JLCNY is seeking to motivate a decision, it was just a month ago that the anti-gas obstructionists congratualted the governor for stalling. Such delay is not responsible, but rather perpetuates the disfunctional decision making that has strangled NY.

    As a landonwer I understand the beneift of having NG development and the Ad Valorem taxes that the companies will pay to local communities. Windsor already experienced reduced taxes thanks to the Laser pipeline. It is not a matter of trusting the companies, but rather integrating them into our communities in a safe and responsible manner just like any other industry or company. It is time to decide to do that!

  7. You can only make a takings claim stick in NY if the land in question is made unsuitable for ANY use, not just a particular use. Landowners can and do still use the land for residence, agriculture, timber, etc. They can still lease their mineral rights and undertake vertical drilling, including vertical wells with hydraulic fracturing.

    Look at it this way. A landowner decides that s/he wants to build a factory, but the land is in an area that is zoned agricultural. No lawyer would go to court claiming takings because the land could still be used for agriculture and residence. If a landowner could claim takings in a case like this, all zoning would be meaningless because it could be challenged by anyone any time over anything.

  8. Joanne,

    Your arm chair lawyering efforts are akin to the entire anti-gas efforts arm chair energy developing/regualting efforts…emotionally based statements made to suit your opinions and without factual merit or technical understanding.

    If a landowner buys land zoned agricultural and wants to put up a factory then that is thier own fault for not understanding the existing zoning, all zoning board of appeals and variance requests not withstanding. However if a landowner buys zoned agricultural land and is told he can’t raise corn like the rest of the landowners, then the understanding that the land was purchased under has been altered and the value of the land has been taken. In zoning or law there are no prohibitions against developing gas, so to enact such now amounts to a taking regardless of any other possible uses. As I explained in my previous post, vertical wells will not be an economically or environmentally sound option. Preventing HVHF when traditional techniques are not viable amounts to a taking.

    Now I’m on the verge of arm chair lawyering much as I accuse you of, but I do so only to explain the average lay landowners stance on the issue. the courts will soon enough decide on such matters so no need to beet the dead horse here.

    So I say again as in my previous posts, enough talking (or not talking a the case really seems to be) and more deciding. It’s time to decide.

  9. If the properties can still be used for money making purposes, there is no taking as the term is applied under the law. In this case, it looks like the taking is by the lawyer who has roped these good landowner folks into paying his bill.

  10. Taxpayer,

    The courts will decide if there is a takings, not anti-gas arm chair lawyers spouting opinions in the hope that saying a lie enough times will make it reality. We all know it won’t.

    The complaint released is not so much about takings as it is about motivating a decision from our disfunctional governor. The studies have all been completed and reviewed and enough facts are on hand to make a choice. It is time for Cuomo to stop the political games and commit the state to what is right, developing our natural gas!

  11. As your JLCNY legend on your own site illustrates very nicely, New York Towns 3-1 are AGAINT fracking. Your legend doesn’t even have all the towns in my county that have banne or have a moratorium in place.
    How is it that your landowners should be able to lease your land when the drillng goes horizontally in any direction for up to a mile! Leaving your neighbors lands, water and air vulnerable to this industrial activity. How about your neighbors rights? It’s ok for you but not for your neighbors for up to a mile who might not want this industrial practice. You are not seeing the whole picture. New Yorkers, when educated of this practice, do not want fracking.

  12. one voice on the hill on

    I wonder how many members in this Landowners Coalition actually live on the land they want to lease for NG extraction? I live on some acreage in the Southern Tier, though probably not of the amount these landowners have to parlay into profits. Down the road, some productive farm land came up for sale, via estate settlement. We met the man who purchased these 300 acres. He has no intention of working the land. He is banking that the ban on HVHF will be lifted in NYS. This land represents potential profits to him…logging out the wooded areas, leasing mineral rights, with very little effort on his part. He lives 65 miles away in the suburbs. We who live here, breathe here, draw our water here, farm and hunt here, must live with his “right to lease his mineral rights” while he is insulated from the industrial activity, the incessant truck traffic on our narrow roads, the diesel fumes, the infiltration of unwanted horizontal tentacles reaching under our property without our permission (forced pooling). None of our neighboring land owners (who actually live here) want HVHF. How about our rights?

  13. The voice of many on

    one voice on the hill the land was auctioned and you could have bought it with your neighbors if you wanted to preserve it. This is America and America was built on speculation so whats your problem. You say none of your neighbors want fracking yet yours and theirs lack of action say different when you let the land slip through your fingers. Personally I believe your being totally untrue in your post

  14. Stop the Propaganda on

    jao

    The towns against fracking are not over the marcellous and were attacked by zealots at meetings to ban drilling. It meant nothing for those town boards to implement bans to get rid of the activist so they can go about normal town business. NOT ONE TOWN OVER THE MARCELLOUS BANNED DRILLING. As far as your statemen about polluting that is hogwash. 5 years 5 months and not one of you nimby anti progressives can name one source of water aquifer pollution from fracking as for your statement on “once people are educated on fracking they don’t want it” you need to change out one word switch the word educated with indoctrinated. The truth is your ranks only grow with fear tactics and misinformation but once the people find the truth out not only do they leave the lie…. they come to us and join the ranks of pro drilling

  15. Be sure to join us on 01/08/2014 at the state of the state address in Albany to stop NY job growth by banning fracking at our second annual Fruck the State. We will have movie stars & singers, Yoko Ono and paid professional speakers to entertain you for free… thats right no addmission….. we won’t even admitt we are funded by Russia and the Arabs of OPEC. Come see and hear singers and speakers and bring your bongos. Lets show all of NY we are in charge not Cuomo Eventually we will get into the oval office and achieve our goal of socializing America and becoming a third world nation

  16. One Voice Over the Hill,
    It seems like your main concerns is that NG development coudl happen in your area. Sounds like you’re a NIMBY? Or are you opposed to it every where and a BANANA? Well our energy has to come from somewhere in some form. I’ll bet you’d be just as opposed seeing windmills and solar farms on your hill along with the traffic and powerlines they would bring.

    As for anyone’s rights to develop the NG or not, we live in a modern society. That includes roads, schools, infrastructure, and energy. We need and use all of them. sooner or later some of us are inconvenienced by those but must accept them for the greater good. I don’t like schools, roads, or taxes needed to support them. But they are needed and I pay for and put up with them without protest. So it must be with NG development. We need and use the energy. Sooner or later all of you anti’s will be forced to choose to lease (hopefully through a coalition for best protections and benefits) or be integrated (with own set of pros and cons and benefits and tradoffs to be considered). You better start learnign about it now so you can choose carefully and not be blinded by your emotions or pride (see http://www.jlcny.org/site/index.php/nimbys/294-the-hypocrisy-and-dilemma-of-being-a-nimby-obstructionist-in-the-days-to-come).
    You can relax though in the mean time. Chances are no wells will be on that 300 acres. Even if there are, the traffic and concerns you raise will be only short lived (unlike windmills and solar farms that are forever). If you’re part of the unit area you’ll be compensated for the gas one way or another. If you see that as blood money then you can donate it to worthy causes. Somehow I think you’ll swallow your dissent and find a good use for that money right there on your part of the hill. Meanwhile you’ll have 300 acres nearby where peace and quiet will reign. Not even a cow mooing or a tractor running as that smart new owner lets the land revert back to forest. Kinda’ makes you wish you and your neighbors had bought it, huh? I know I wish I had!