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Landowners Will File Lawsuit Against Fracking Delays By End Of The Year

Office of Governor Andrew Cuomo

A landowners group says it intends to file a lawsuit against what it says are the Cuomo Administration’s unreasonable delays on hydrofracking before the end of the year.

The Joint Landowner’s Association has raised nearly enough money to file a claim in State Supreme Court, says the group’s attorney Scott Kurkoski.  He says the suit will in part focus on New York State’s unprecedented delay in a decision about fracking, which has now dragged on for over five years. He says numerous other states that now allow the gas drilling practice decided in anywhere from 8 to 24 months.

“Not only has no other state ever taken this long,” Kurkoski said. “But no other state has issued a moratorium.”

Kurkoski says even though a moratorium passed by the legislature and signed by then Governor David Paterson has expired, the state still has a moratorium in place because the state’s Department of Environmental Conservation can’t issues permits until it finishes its environmental review. That review is currently held up while Governor Cuomo’s health commissioner, Dr. Nirav Shah, conducts a health study first. That review has been going on for over a year, which Kurkoski says is too long.

“Clearly we want to be careful,” Kurkoski said. “I represent the landowners who live on these properties. They want make sure there are no impacts to their  families or their farms.”

But he says the landowners group believes the delay now  can only be political. Governor Cuomo faces significant opposition from anti fracking groups.

Kurkoski says the environmental agency is not following its own rules under the State’s Environmental Quality Review Act, which says reviews must be done promptly, with a minimum of procedural and administrative delay.  

The lawsuit will also claim that the now more than five year delay on a decision on hydro fracking is unconstitutional. Because, attorney Kurokoski says, it’s preventing some property owners from money they should rightfully be earning through leases to gas companies.

The two plaintiffs in the case hold drilling leases with two gas companies, Norse and Chesapeake. Norse recently filed for bankruptcy, claiming the delays had put it out of business. While Kurkoski would not reveal their identities, he says the plaintiffs are New Yorkers who own the subsurface drilling rights on the parcels of property, but not the surface rights. That means they can’t do something else with the land, like farming or developing a condominium complex, because someone else owns the surface rights.

Kurkoski says the practice of one party owning the surface rights to a piece of land while others own the subsurface rights for drilling and mining is common in Western states, where lots of drilling takes place.  

He says the suit will claim the delays amount to an unconstitutional “taking” by the government, of the  subsurface property owners rights to make a profit from their land.

“What else can they do with their property rights?’ Kurkoski asked.

He says the landowners group hopes to file the lawsuit by the end of December.

And while Governor Cuomo has said repeatedly he’s waiting for the completed review from his health commissioner, he has also said that he would make a decision on whether the state should go ahead with hydro fracking before Election Day in November of next year.  

Karen DeWitt is Capitol Bureau chief for New York State Public Radio, a network of public radio stations in New York state. She has covered state government and politics for the network since 1990.
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