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New Yorkers In Court Fighting State’s Attempt to Dismiss Lawsuit

Apr 25, 2014 | by William Perry Pendley

DENVER, CO.  A coalition of 70,000 New York land-owners and three property owners were in court today battling the attempt by Governor Andrew Cuomo, the New York Department of Environmental Conservation (DEC), the New York Department of Health (DOH), and two State officials—the DEC and DOC commissioners—to dismiss their lawsuit.  In their lawsuit, filed in New York Supreme Court, Albany County, in February the plaintiffs ask that the DEC be compelled to complete studies under the State Environmental Quality Review Act to permit the landowners to use their land to develop energy supplies.  The lawsuit follows a January letter seeking a date certain on which the study will be completed and after more than five and a half years of a moratorium barring use of privately owned property to develop the Marcellus Shale, which underlies portions of the Empire State.  The landowners are represented by Mountain States Legal Foundation (MSLF) and local counsel Scott R. Kurkoski in Vestal.  MSLF Vice President and Chief Legal Officer, Steven J. Lechner, argued on behalf of the landowners.

“We advised the court that our clients have standing and that this lawsuit is the proper means by which to challenge the refusal of State officials to comply with the law,” said William Perry Pendley, MSLF president.

Named as plaintiffs in the lawsuit were the Joint Landowners Coalition of New York (JLCNY) of Binghamton, the Kark Family Trust in Colesville, and LADTM, LLC, and Schaefer Timber and Stone, LLC both of Deposit.

The 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); nonetheless, the Final SGEIS remains unpublished. 

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

For more information:  Joint Landowners Coaliton of New York v. Cuomo

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