This litigation follows on the heels of statements made by Governor Cuomo and Dr. Shah following a public Cabinet Meeting yesterday that there is no end in sight for the ongoing 5 ½ year review of fracking in New York. Dr. Shah confirmed that he is continuing to review new studies as they become available. When questioned when the process would be done, Dr. Shah responded: “When I’m done.” When questioned about the transparency in the process, Dr. Shah confirmed that his review would not be open to public scrutiny until it is final. Governor Cuomo added: “My timeline is whatever Commissioner Shah needs to do it right and feel comfortable … and whatever Commissioner (Joe) Martens feels to be comfortable,” he said. “And I don’t want to put any undue pressure on them that would artificially abbreviate what they’re doing.”
Tom West, the Managing Partner of The West Firm, PLLC, an Albany-based firm that specializes in this type of litigation, said: “This open-ended timetable and lack of transparency is an abuse of power and nothing more than a sham excuse for political delay. The decision to delay the development of our indigenous natural gas resources will go down in history as one of the great economic blunders of all times. Billions of dollars have been injected into the economies of the many other states in this country that have joined the shale revolution and help to put America on a path to economic prosperity and energy independence.” West further added: “Norse Energy and its investors have lost more than $100 million by reason of this delay.” “Since this litigation was announced, Landowners have contacted me to thank me for bringing this action, complaining that they have lost their farms and their lives have been ruined as a result of the inability to participate in the shale revolution.”
Norse Energy Corp., USA, originally sought reorganization protection of the United States Bankruptcy Court to help it weather the delay that was being occasioned by the 5 ½ year review process in New York State, but was later forced into liquidation proceedings when an auction of some of the New York assets of Norse failed to produce any responsible bidders. West added: “New York ranks dead last in the country and 119th in the world, just ahead of Yemen, a country with known terrorist activities, as a suitable place for investment in the oil and gas industry. This terrible business reputation is a direct result of the inability of New York State to finalize standards for fracking. James Lobdell also joined the litigation because of his personal loss as a result of the Norse liquidation. West stated: “Petitioner James Lobdell, a disabled veteran, lost more than $20,000, which was his nest egg for the future, and there are many other investors who lost millions of dollars as a result of this bankruptcy. Governor Cuomo and his agency heads need to understand that they are causing real harm to citizens of New York State in addition to squandering away what is probably the most significant economic opportunity in the history of New York.”
The litigation was commenced in Albany County Supreme Court to compel finalization of the long overdue Supplemental Generic Environmental Impact Statement (SGEIS) relative to high-volume hydraulic fracturing in New York State that has been ongoing for 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, 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.
The case is returnable on January 24, 2014, in Albany County Supreme Court where a Judge will hear arguments on the merits and decide whether a jury trial is required to further develop these issues.
Copies of the litigation papers can be found at: