In a desperate attempt to avoid the merits of this case and seek further delays, the State Respondents have moved to dismiss the Mandamus Proceeding seeking completion of the Supplemental Generic Environmental Impact Statement (SGEIS) relative to high-volume hydraulic fracturing. The State Respondents argue that the Norse Trustee does not have standing in this proceeding, even though he is the Trustee of all of the Norse assets, including its 27 pending permit applications before the DEC. Likewise, they assert that the SGEIS is a policymaking exercise that is not subject to judicial review at all.
Hard-hitting papers were filed and served in response to this motion yesterday, pointing out the obvious errors in the State's motion. Tom West, the Managing Partner of The West Firm stated: “We remain optimistic that the motion to dismiss will be denied. It is simply untenable for the State to argue that the Trustee of a bankrupt company does not have control over the assets of that company, including the pending permit applications. It is also arrogant for the State to argue that their activities under the State Environmental Quality Review Act for the past 5 1/2 years are beyond judicial review. We look forward to the day when the motion to dismiss is denied, so we can get discovery from the State and have a jury trial to prove our case.” Copies of the Motion to Dismiss and our responsive papers can be found at the links below.
This motion comes on the heels of testimony by DOH Commissioner Shah that there is no timetable for finishing his review of health issues associated with high-volume hydraulic fracturing and similar testimony from DEC Commissioner Martens indicating that he does not expect the process to be completed soon and does not expect permits to be issued any time during the upcoming fiscal year which expires March 31, 2015. In other words, there is no end in sight regarding the political delays being effectuated by Governor Cuomo, which has destroyed the value of the Norse assets, the Norse permit applications and the mineral rights of tens of thousands of New Yorkers.
This litigation was commenced in Albany County Supreme Court to compel finalization of the long overdue SGEIS relative to high-volume hydraulic fracturing in New York State that has been ongoing for more than 5 ½ years. The litigation, which names Joseph Martens, the Commissioner of the New York Department of Environmental Conservation, Dr. Nirav Shah, the Commissioner of the New York Department of Health, their respective Departments, and Governor Cuomo as Respondents, seeks:
(1) Mandamus relief to compel finalization of the SGEIS;
(2) A determination that the referral to Dr. Shah is illegal under the State Environmental Quality Review Act;
(3) An order of prohibition, prohibiting Governor Cuomo from further delaying the process;
(4) A jury trial if New York State responds by offering additional lame excuses for delay; and
(5) Public review of all of the interagency communications, including communications from and to the Executive Chamber, concerning the SGEIS process.
Recently, the Joint Landowners Coalition of New York, Inc. (“JLC”) and several individual petitioners commenced similar litigation. The Justice who will hear both cases has decided to hear them together and will allow the JLC case to catch up to the Norse case. We anticipate a similar motion to dismiss in the JLC case and both cases being heard near the end of April.
Petitioners-Plaintiffs' Responsive Papers
Respondents-Defendants' Motion to Dismiss