As per the last post, https://solidshale.wordpress.com/2012/09/07/the-sound-of-one-hand-clapping/, there has not been a lot of news from the Cuomo administration on fracking recently.  The closest thing to news was Cuomo’s interview shortly after our “Sound of One Hand Clapping” post, with his favorite reporter, Fred Dicker.  As reported in E&E Publishing, LLC:

Recent news reports that New York’s decision on hydraulic fracturing is imminent appear to be off base….

Gov. Andrew Cuomo, appearing on an Albany radio station, said he feels no pressure to issue a final declaration on whether to permit the drilling practice anytime soon. He denied that a decision has to happen before Election Day or by the end of the year.

“When it’s done, and they’re prepared, that’s when we’ll announce a decision,” Cuomo told WGDJ radio host Fred Dicker on Monday.

Additionally, Cuomo talked with Dicker about the fact that there would likely be a lot of action in the courts– as News Radio 1290 puts it, Fracking Faces Legal Challenges

The governor said the fate of fracking likely will be tied in the courts for an extended time.

Cuomo said the DEC must work to ensure that its proposed regulations are “well grounded” and that they’ll stand up to the expected legal challenges.

Of course, this is the season in which the lawmakers– the legislature– are home in their districts, many of them running for office.  However, the courts are open year-round, and citizens and citizen organizations have access to them whenever they wish to seek redress.  This week, the Environmental Working Group did just that, as reported in the Times Union:

The Washington, D.C.-based Environmental Working Group on Monday sued Gov. Andrew Cuomo and the state Department of Environmental Conservation, claiming they failed to honor the Freedom of Information Law by denying the public thousands of records sought by the group in March.

The suit, filed in Albany County state Supreme Court, claims the DEC and Cuomo’s executive chamber provided only a fraction of the records it requested. The nonprofit asked for materials that would disclose government communications with the energy industry about the state’s deliberations on planning for the controversial method of drilling for natural gas known as fracking.

Cuomo spoke about likely legal challenges following the DEC’s release of a final SGEIS and regulations, but it is entirely likely that lawsuits taking issue with the procedural course followed by DEC may begin even in advance of the release of the regs.  This suit may be just the first of many in that vein.  Today, the Natural Resources Defense Council also announced their Community Fracking Defense Project, which, among other things, will help to “Defend relevant zoning provisions and other local laws that are challenged in court.”
And, of course, there is the possibility of appeal of the Home Rule lawsuits won by the towns of  Dryden and Middlefield, although, despite issuing a “notice of appeal,” gas company Attorney and lobbyist Tom West has failed to “perfect” his appeal, so, currently, no hearings are scheduled.  A very interesting forum, to be held at Albany Law School, will present speakers on these cases, including West and the attorney retained by Town of Dryden to represent it in any appeal hearing, Deborah Goldberg of Earthjustice.

Legal challenges to hydrofracking may also be embedded in existing legal disputes, whether that be disputes challenging the right of gas companies holding leases to invoke force majeur clauses, or even challenges to the rights of town governments to explicitly zone in fracking where those same towns are involved in Indian land claims disputes. Onondaga Faith Keeper Oren Lyons explained, speaking at a celebration at the Onondaga Nation last weekend, that the Onondaga Nation has determined that it will allow no fracking on its lands, and, as he pointed out, “our lands are vast.” At least until after the election, the place to look for NYS governmental actions related to fracking is probably the courts.

UPDATE:

In it’s 9/19/12 edition, the Cortland Standard reports that there has been a change in litigant in the Dryden vs. Anschutz home rule case.  Anshutz, a company based in the US, has sold “a few” of their leases to Norse Energy, a gas exploration company based in Norway with extensive leaseholdings in NYS,  but relatively few outside the state.  Norse’s holdings are concentrated in the Chenango County area, and Anschutz told the Cortland Standard that most Dryden gas leases, which they continue to hold, will be allowed to expire.  Attorney Tom West will continue to pursue the case, now working on behalf of the Norway-based company. Explaining Anschutz’s decision to cut its losses and run, rather than stay and fight, West said:

It’s not a friendly environment for natural gas development.  There’s significant “fractivism” and you have unfriendly lower court rulings.

It remains to be seen whether judges will confirm, on appeal, that local municipalities have the right to enact zoning to protect themselves from having their health, community character and economies assaulted by an unwanted industry controlled by foreign companies looking to extract mineral resources and sell them on the world market.  The situation bears an eery resemblance to the long-ago insistence by Northeastern rural communities that they would not abide laws that sent their natural resources across the Northern Atlantic to Europe.  Their resistance spawned the Revolutionary War, and the rest is history…

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