For the first time, a lawsuit has been filed against the New York Department of Environmental Conservation (DEC) over a local moratorium placed on hydraulic fracking. Filed on November 15 by natural-gas developer Lenape Resources, Inc. against the DEC and the Town of Avon in western New York, the suit is expected to prompt the agency to express its position on municipal fracking bans and moratoria.
Around 150 bans or moratoria on fracking are in effect across New York. Four lawsuits challenging such bans have already been filed, with mixed results. For instance, two previous decisions have upheld fracking bans in the towns of Middlefield and Dryden and the rights of towns to use zoning laws to prohibit fracking. Another court decision overturned a two-year fracking moratorium in Binghamton that did not use zoning laws as the basis for prohibition. Appeals of these cases remain pending.
In the Lenape suit, the company argues that the Town of Avon exceeded its authority by passing a moratorium on fracking when only the DEC is permitted to regulate gas development within the state. The company further argues that the DEC is at fault for allowing Avon to implement the moratorium.
The suit comes as the DEC planned to seek a 90-day extension to complete fracking rules in order for a health-impact study to be completed. The DEC’s final decision on whether fracking will be allowed in New York is likely to be pushed back until 2013.
This article was authored by Douglas J. Crouse, Jackson Kelly PLLC. For more information on the author see here.