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November 13, 2013

New York Landowners Threaten Lawsuit Against State - Seek to Compel Issuance of SGEIS

On November 12, 2013, the Joint Landowners Coalition of New York, Inc. (JLC) announced that its legal team had completed their complaint against the State of New York, including claims against Governor Andrew Cuomo and Commissioners Martens (DEC) and Shah (DOH) in their official and individual capacities, for its failure to issue the Supplemental Generic Environmental Impact Statement (SGEIS) for high-volume hydraulic fracturing.  The Complaint, which has yet to be filed, includes a myriad of claims, including takings claims under both the federal and state constitution, substantive and procedural due process claims under the Fourteenth Amendment, and §1983 claims as well as allegations that New York has imposed an illegal moratorium and failed to comply with the State Environmental Quality Review Act.  The JLC’s Complaint seeks, among other things, to compel New York to complete the SGEIS and allow shale development to proceed in the state.

The crux of the JLC’s allegations is that the now more than five year de facto moratorium in New York is being held up solely due to politics and not science as the state has often pointed to.  According to the JLC’s press release, “[o]nce discovery begins in the litigation process, we are certain that we will reveal what we all know – that the state has deliberately delayed the SGEIS.”

The JLC has not yet filed its Complaint.  Rather, it has only released a draft copy, keeping the identity of its named plaintiffs hidden, in order to raise more money to litigate.  And, to date, no response from the State has been made although one is not expected given that the Complaint has not yet been filed and even then, one would surmise that the State would elect to respond solely in court filings.  We will therefore need to wait to see if the JLC’s threatened lawsuit gets sufficient funding, moves forward in court and accomplishes its obvious goal of moving New York closer to shale development.

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