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.”