It appears that the New York State Department of Environmental Conservation (“DEC”) will very likely face multiple legal challenges to its long-delayed issuance of a final Supplemental Generic Environmental Impact Statement (“SGEIS”) for the High-Volume Hydraulic Fracturing (“HVHF”) regulatory program. Lawyers representing the Bankruptcy Trustee of Norse Energy Corp. USA filed a letter with DEC Commissioner Martens demanding that he identify “a date certain in the near future when the SGEIS will be completed so that the many permit applications that were filed by Norse may be pursued.” “Absent a definitive and reasonable timetable” from DEC, Norse has declared its intent to sue the agency in state court seeking an order to compel finalization of the SGEIS.
Separately, in November, the Joint Landowners Coalition of New York, Inc. (“JLC”), announced that it intends to file its long-threatened lawsuit based on DEC’s delayed SGEIS. JLC previously released a draft of the Article 78 Petition and Complaint (“Complaint”), which has not yet been filed, but is expected to be brought in Albany County Supreme Court. The Complaint names the State of New York, Governor Cuomo, DEC, DEC Commissioner Martens, as well as the New York State Department of Health (“DOH”), and DOH Commissioner Shah. The Complaint lists a number of claims stemming from DEC’s failure to complete the SGEIS, including takings under the U.S. and New York State Constitutions, and also alleges that the State has imposed an illegal moratorium, has failed to comply with the State Environmental Quality Review Act, and has deprived landowners of their due process rights in violation of the U.S. Constitution. The Complaint also seeks to compel issuance of the final SGEIS, as well as an award of just compensation for takings and money damages under 42 U.S.C. § 1983. The JLC has stated that it intends to file the lawsuit by the end of the year.