Lawsuit Threatened Over New York’s Fracking Approval Delay, Impact Statement
Dec. 5 –The trustee for a bankrupt energy company is preparing to sue New York state to compel it to issue a long-awaited environmental impact statement on the natural gas drilling practice known as fracking.
Attorneys for the trustee for Norse Energy Corp. USA sent a letter to the environmental conservation commissioner Dec. 2, asking him to respond within two weeks or face a lawsuit to compel finalization of the statement.
The statement, which is known as a Supplemental Generic Environmental Impact Statement (SGEIS), has been on hold for months, pending a health and environmental study by the state health commissioner.
The letter said DEC, by failing to issue a SGEIS in a timely fashion, is violating the State Environmental Quality Review Act (SEQRA) and provisions in state law that require the commissioner to promote the development of oil and gas resources. It also alleges that the commissioner acted arbitrarily and capriciously and illegally delegated his decision-making authority to the state health commissioner.
“As you are well aware, SEQRA is not intended to be a tool to stop development,’’ according to the letter from attorney Thomas S. West of The West Law firm. “SEQRA contains explicit timeframes to bring the environmental impact review process to conclusion.’’
Proposed Rule Lapsed
The state originally intended to regulate fracking through the SGEIS and a rulemaking, but it let proposed rules expire in February. Joseph Martens, commissioner of the Department of Environmental Conservation (DEC), has said he would not approve a final environmental impact statement for fracking until the health study is complete.
“The Department’s protracted delay and refusal to complete the SGEIS process must come to an end,’’ the letter said. “The Department must comply with the statutory mandates in [Environmental Conservation Law] Articles 8 and 23 and can no longer delay decision on the right of New Yorkers to have their indigenous oil and gas resources developed for the collective benefit of landowners, operators and the citizens of New York state.’’
“Because the Department is duty-bound to complete environmental reviews in a timely and prompt manner and to promote the development of indigenous oil and gas resources, we respectfully request that you identify a date certain in the very near future when the SGEIS will be completed and permit applications may be progressed in New York State.’’
Norse Converts Bankruptcy
Norse Energy announced Oct. 10 that its two U.S. subsidiaries, Norse Energy Corp. USA and Norse Energy Holdings Inc., were converting their Chapter 11 proceedings to Chapter 7 (25 BBLR 1439, 10/24/13). The companies have been operating under Chapter 11 since December 2012.
Norse Energy Corp. USA made 27 applications to the DEC for permits to conduct high volume hydraulic fracturing in New York, but all of the applications were put on hold pending the final SGEIS, according to the letter from West.
Peter Constantakes, a spokesman for the DEC, told Bloomberg BNA in an e-mail message that “DEC does not comment on potential litigation.
“The commissioner of health, Dr. Nirav Shah, is reviewing the draft SGEIS on hydraulic fracturing to determine whether all potential risks to public health have been addressed,’’ Constantakes said. “Dr. Shah has obtained comments from three nationally recognized public health experts in this review.’’
“He is now investigating efforts under way by the federal government and in states around the country to study potential health effects of hydraulic fracturing. Until he completes that investigation, a decision on the issuance of permits cannot be made. It is essential that this decision await a conclusion as to whether this activity can be done safely in New York State.’’
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