The frackers say that 6 years is long enough to revise New York’s fracking regulations. Which begs the question, “How long does it usually take the DEC to revise its fracking regulations ?” The last time they tried it took seventeen (17) years. Because the frackers didn’t want any updated regulations. Ironic, huh ?
This is the Disjointed Landowners’ account of the hearing in the Koch Brothers Funded Action against the New York DEC for, ostensibly, delaying the rule making process to permit shale wells. My comments in bold:
“The following is a broad overview and a layman’s account of the court action. The plaintiff parties (our side) brought an Article 78 action against the executive branch. Roughly, an Article 78 asks the responsible party in government to obey the law. In our case, we asked various elements of the executive branch to implement the SGEIS. We contend that a six year delay is a denial of justice and the plaintiff parties have suffered damage. The State routinely asks for dismissal when challenged. That’s what happened yesterday.
The DEC routinely updates its regulations, the last time they reviewed the Generic Environmental Impact Statement (GEIS) they took several years – and did not substantively change it at all. In fact, they said that they lost most of the 1997 revised drafts, until a FOIL request by Brian Brock turned up the drafts, The 1997 update was never completed. That was 17 years ago.
The State, represented by Ms. Costello, opined that the plaintiffs didn’t have standing because the State Environmental Quality Review Act (SEQRA) deals with policy that takes precedence over economic loss. Implementing policy may take time, even extended time. The DEC’s delegation of responsibilities to the DOH was not artificial and capricious and falls within the responsibilities of the executive who can devise whatever procedure deemed fitting. Judge McDonough asked if the executive branch can delay forever. Ms. Costello’s answer was that it can take extended time. Judge McDonough seemed to agree with Ms. Costello on the executives role, calling it “Separation of Powers 101.”
The SEQRA is not the same as the dSGEIS. The SEQRA is for a specific project, the dSGEIS, as its name implies, is a draft generic set of regulations that guide the review of a SEQRA. However, an applicant could apply for a site specific review – a SEQRA – under the existing regulations without invoking the proposed revisions to the draft SGEIS. The DEC has said as much – anyone could apply for a shale well permit under an individual site specific SEQRA, there is no “de facto moratorium” on that. Exxon could do that tomorrow on a trout stream in the Catskills.
Likewise, the regulatory review does not prohibit horizontal shale wells, no moratorium of wells below a certain amount of gallons used in the frack. Any propane frack could come in under that threshold. Therefore, the “delay” only narrowly applies to one type of frack – a high volume slick water frack of over 300,000 gallons. Below that, any fracker can frack themselves senseless.
Attorney Tom West for Norse (now “Any Acquisition”) spoke next. The Judge focused on time limits in SEQRA. There are none. He suggested that this should be remedied in the legislature or in the executive branch. As Attorney West kept hammering at the history of delay and the ongoing wrong, the Judge said that he can only take the executive on its word at this stage of the process. (Editor’s note: Motive will emerge in discovery, but we have to get past the motion to dismiss in order to get to discovery.) The Judge sympathized with the frustration but kept returning to time limits in the law. (There are none in the law)
They are confabulating terms here, the DEC is reviewing the SGEIS (not the site specific SEQRA process per se) – which the DEC has not comprehensively updated since 1972. When the time came to update it, they received over 220,000 comments.
Steven Lechner of the Mountain States Legal Foundation followed Tom West with a property rights perspective. A time limit is implicit if property right are to be preserved. Judge McDonough countered with a question; how does a court decide a timely manner. 6 years? 5 years? 10 years? However, in this segment of the argument, the possibility of a distinction between unlawful delay and unreasonable delay surfaced. Judge McDonough seemed unwilling to find an unlawful delay in the executive’s actions. The concept of unreasonable delay was still a possibility.
None of the plaintiffs can plausibly argue delay because none of them have completed HVHF shale well permits on file at the DEC. You cannot be denied or delayed on something you have not applied for. They have no standing to argue that they have been delayed. None of the operators that have completed shale well permits on file are party to this publicity stunt – because there is nothing worth fracking in New York state at current or projected gas prices.
When asked if there were any further comments, our attorney,Scott Kurkoski spoke up. He first spoke to the reason SEQRA has no time limit. Each permit is different. There can be no uniform end time. (Again, confusing the generic regulatory update with a site specific review.)
In summary, Ms. Costello wrapped up a few loose ends for the State. The Judge asked her if SEQRA had any time limit. She answered that there was no time limit. The judge said, “Then it can last to 2121?” Ms Costello said, “There is no time table.”
The Judge asked, “Isn’t that the petitioners argument? What is a reasonable time limit?” Ms. Costello said, “ You can’t put a number on it. SEQRA doesn’t have a standard.”
There are no monetary damages claimed by the plaintiffs. They are simply complaining that the regulatory update of the SGEIS (which facilitates review of individual site specific SEQRAs) has simply taken a long time. Nor have they proposed a time frame on how long the regulatory review is supposed to take. The current precedent at the DEC is 17 years. The last time the DEC went to update the generic regulations – in 1997 – it never finished the process. The current on-going round of revisions are a re-start of that revision process.
Based on the previous “update” cycle the Koch Brothers have another 11 years to go. By which time they’ll both be dead or solar will be cheaper than fracked gas. Whichever comes sooner.