The Department of Environmental Conservation (DEC) oversees the regulation of oil and natural gas drilling in New York. The New York State Environmental Quality Review Act (SEQRA) requires the DEC to consider various factors prior to approving activities that may have an adverse effect on the environment but also to expedite proceedings to minimize procedural and administrative delay in obtaining permits to extract oil or natural gas. In 1992, to streamline the well permitting process, the DEC prepared a Generic Environmental Impact Statement (GEIS), which recognized the use of both horizontal drilling and hydraulic fracturing (HF).
In 2008, the Environmental Conservation Law was amended as to spacing requirements of drilling units for wells utilizing horizontal drilling and HF and then-Governor David Paterson directed the DEC to initiate a formal public process to update the 1992 GEIS as to HF and imposed a moratorium on any new permits. The DEC issued a draft supplemental GEIS, received thousands of public comments, held multiple public meetings, and issued a revised draft supplemental GEIS (SGEIS), yet the Final SGEIS remains unpublished.
A coalition of 70,000 New York landowners—the Joint Landowners Coalition of New York (JLCNY)—and individual property owners—the Kark Family Trust, LADTM, LLC, and Schaefer Timber and Stone, LLC, are represented by MSLF and the coalition’s local counsel, Scott R. Kurkoski, Esq., of Levene, Gouldin & Thompson, LLP, in Vestal.
On January 31, 2014, the landowners sent a letter to the DEC, the Department of Health (DOH) and Governor Andrew Cuomo stating that, if the DEC fails to set a date when it will complete its studies and process applications to allow development of privately owned gas supplies or before February 13, 2014, they will ask a state court to compel completion of the studies pursuant to the SEQRA. On February 14, 2014, the landowners filed a complaint against Governor Cuomo, the DEC, the DOH, and others, seeking to compel completion of the SGEIS process.
On March 18, 2014, defendants filed a motion to dismiss for lack of standing and failure to state a claim. On March 28, 2014, the landowners filed an opposition. On April 25, 2014, oral arguments on the motion to dismiss were held in Albany, New York.
On July 11, 2014, the Court granted defendants’ motion to dismiss, finding that the landowners failed to satisfy the “zone of interest” test; because the landowners failed to allege an environmental injury resulting from the state’s actions/inactions, the landowners did not have standing. On July 25, 2014, the landowners filed a notice of appeal.