A leading oil-and-gas trade group will let a key deadline pass without challenging New York’s ban on large-scale hydraulic fracturing.
API New York, the state chapter of the American Petroleum Institute, will not file what’s known as an Article 78 challenge against the state’s fracking ban, according to Executive Director Karen Moreau. Today was the deadline to file an Article 78 claim, a legal process used to challenge an official state action or determination.
Instead, Moreau said the trade organization — which has long been assessing its legal options related to the ban — is weighing other potential legal remedies. And the group is “closely watching” a challenge to the ban filed earlier this year by East Rochester-based attorney David Morabito, she said.
“We are not going to be filing any Article 78 proceedings,” Moreau said. “We are still considering other options.”
The decision not to file ahead of the deadline shines a greater spotlight on Morabito’s lawsuit, which was first filed in May — after Gov. Andrew Cuomo’s administration announced its intention to ban high-volume fracking, but before it issued the document making it official.
Supporters of fracking — a technique using water, sand and chemicals to help unlock natural gas — have derided the Cuomo administration’s ban, which they say has blocked potential development in the Southern Tier. Fracking critics have widely praised Cuomo, pointing to drilling’s potential impact to the environment and human health.
The lawsuit from Morabito, who owns land in Allegany and Monroe counties, seeks to force the state Department of Environmental Conservation to allow high-volume fracking on his property. It is based largely on a January letter from a DEC official informing him the state’s ban applies to his property.
He argues that the state’s research, detailed in part in a health report released last December, doesn’t justify the ban.
Late last month, the state Attorney General’s Office filed a motion trying to dismiss the case, arguing that Morabito doesn’t have standing to challenge it. The state also claims Morabito didn’t exhaust his options prior to filing a lawsuit, largely because he never formally filed a permit application. Morabito’s lawsuit
Morabito, who will file his response to the state this week, said he wasn’t surprised other fracking supporters didn’t file an Article 78 challenge, in part because of the expense. He’s representing himself in the case.
“It is a very, very costly endeavor to commence an action against the state of New York, especially when it’s something so serious,” Morabito said. “If I had to pay an attorney, it would be shockingly exorbitant.”
Moreau said her group will be following Morabito’s case.
“A challenge has been filed against DEC’s findings by attorney David Morabito, and we are closely watching that,” she said.