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New York Landowners' Group Sues Governor, State Officials

A coalition of New York landowners that supports natural gas development filed a lawsuit Friday in the state Supreme Court against Gov. Andrew Cuomo, the state departments of Environmental Conservation (DEC) and Health (DOH) and their respective commissioners over delays in considering high-volume hydraulic fracturing (HVHF).

Meanwhile, a Quinnipiac University poll released Wednesday showed New York State voters oppose Marcellus Shale drilling by a 45-41% margin, but more than one-third of respondents believe Cuomo is stalling on the issue.

The Joint Landowners Coalition of New York Inc. (JLCNY) filed suit against Cuomo, DEC and DOH on behalf of its 70,000 members, as well as the Kark Family Trust, LADTM LLC, and Schaefer Timber & Stone LLC, landowners whose properties were issued HVHF drilling permits but have been unable to proceed with development.

In September 2012, DEC Commissioner Joseph Martens asked DOH Commissioner Nirav Shah to complete a health impact analysis of HVHF before the DEC completed a supplemental generic environmental impact statement (SGEIS) on the practice (see Shale Daily, Sept. 24, 2012).

In court papers filed Friday, JLCNY attorney Scott Kurkoski said the DEC had failed to complete its non-discretionary duty to complete the SGEIS; had failed to meet the deadlines set forth in the State Environmental Quality Review Act (SEQRA); and had run afoul of the state's official energy policy.

"The DEC has further failed to promote the development of indigenous oil and gas development as required by the energy law," Kurkoski, an attorney with the Binghamton, NY, firm Levene Gouldin & Thompson LLP, said. He added that Martens' decision to refer to Shah for a review "was an arbitrary and capricious action, an abuse of discretion, and in direct violation of the DEC's responsibilities as lead agency under SEQRA.

"The DOH and Commissioner Shah lack the authority to further delay the completion of the SGEIS process…Gov. Cuomo must be ordered to cease delaying the completion of the SGEIS process…[and] be ordered to open his records regarding the entire SGEIS review for public scrutiny."

According to the latest Quinnipiac poll, 45% of voters oppose Marcellus drilling while 41% support it. Drilling supporters included Republicans (66-24%), men (50-40%), Upstate (46-45%) and suburban (44-40%) voters. Democrats (56-28%), independents (45-41%), women (49-33%) and New York City voters (48-35%) were opposed to drilling.

Overall support for drilling fell 3% (46-44% opposed) from the last Quinnipiac poll in November 2013. Drilling supporters prevailed in a June 2013 poll (46-44%) but fell short in polls conducted in March (46-39% opposed) and April (46-42% opposed) of 2013 (see Shale Daily, April 22, 2013; March 20, 2013).

Twenty-three percent of respondents agreed that Cuomo was "carefully evaluating" the issue of hydraulic fracturing (fracking), but 35% opined that the Democratic governor was "dragging his feet" on the issue. Another 37% had no opinion.

JLCNY said the latest Quinnipiac poll "underscores an important dichotomy -- that even though Upstate voters are consistently in support of developing natural gas in their own region, the unsupportive views of respondents from New York City continue to disproportionately affect the rights of Upstaters.

"The irony, of course, is that New York City has the cleanest air it has seen in 50 years, largely due to the increased use of natural gas to replace other heating fuels. This is the ultimate NIMBY sentiment and a prolongation of Upstate views having no will in their own domain."

Quinnipiac surveyed 1,488 registered voters in New York between Feb. 6 and 10. The poll has a margin of error of plus/minus 2.5%.

The level of drilling permits and completions in New York had been rising in the early half of the 2000s, but abruptly reversed course around the same time that activity in the Marcellus Shale in Pennsylvania began to rise. And while DEC issued 154 oil drilling permits in 2012, there was virtually no natural gas permitting activity in the state.

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