Frack Delay Prompts a Lawsuit

Frack Delay Prompts a Lawsuit by Joseph de Avila, November 28, 2012, Wall Street Journal
The state Department of Environmental Conservation has for the first time been targeted in a lawsuit challenging a local moratorium on hydraulic fracturing, or fracking. The lawsuit, filed by natural-gas developer Lenape Resources Inc. against the DEC and the Town of Avon, in western New York, could mark the first time the agency articulates its position on municipal fracking bans and moratoria. Statewide, four lawsuits have been filed challenging municipal bans or moratoria on fracking, with mixed results. Nearly 150 bans or moratoria are in effect across New York state. … If Avon’s moratorium is upheld, Lenape is seeking $50 million in damages from the town for the “unconstitutional regulatory taking of its property without compensation,” according to the complaint. Avon Town supervisor David LeFeber says the town board is meeting Thursday to discuss the lawsuit. “We got to defend our moratorium and the actions we took,” he said. … Two previous court decisions in New York have upheld fracking bans in the towns of Middlefield and Dryden and the rights of towns to use zoning laws to prohibit the gas-extraction method. Another court decision overturned a two-year fracking moratorium in Binghamton that didn’t use zoning laws to prohibit the practice. But in that case, the state Supreme Court justice agreed towns could use zoning regulations to prohibit fracking. All of those cases are expected to end up in the Court of Appeals.

“It doesn’t have a provisions that protects me from what I have already developed,” said John Holko, president of Lenape. “I can’t drill another well in the town. That’s my business.” Lenape argues that the town overstepped its authority by passing a moratorium on fracking when only the DEC is permitted to regulate gas development in the state. The company also claims in the complaint that the DEC is culpable for failing to defend state law by allowing Avon to enact its moratorium. “Our primary goal is to have the courts recognize that this area is superseded by state law,” Mr. Holko said. Attorneys who have represented towns that have passed fracking bans or moratoria say that argument won’t hold in court. Three judges in New York have already agreed that towns can use zoning to prohibit fracking, said Joseph Heath, an attorney who represented Binghamton in the lawsuit that challenged its moratorium “I don’t think this lawsuit is going to have any more success,” he said.

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