Fresh off its hotly anticipated August 2014 decision upholding the right of municipalities to zone oil and gas extraction operations out of their towns, the New York State Court of Appeals is set to weigh in on another oil and gas extraction issue. This latest matter arrived at the Court of Appeals through a somewhat unusual route, but promises to decide whether landowning lessors or industry lessees bear the cost of state level regulatory inaction on high volume hydraulic fracturing of shale with horizontal drilling (also known as fracking).
On November 29, 2012, the New York State Department of Environmental Conservation missed its deadline under state law to finalize regulations for hydrofracking in New York. However, shortly before the deadline, it filed a Notice of Continuation with the Department of State to secure a 90 day extension for the rulemaking process.
In a decision that highlights how strictly trial courts are construing the standing of prospective plaintiffs or petitioners, a State Supreme Court justice in Westchester County recently held that because of a land conservation buffer between existing homes and a proposed development that the petitioners were fighting, individual residents could not establish the "proximity" necessary to confer standing, i.e., the status needed to permit them to sue. In particular, the petitioners could not establish, in the court's view, that they were harmed in a manner different from that of the general public; in other words, they lacked the particularized injury necessary to be able to challenge the project. See Matter of Tuxedo Land Trust Inc. v. Town of Tuxedo, 2012 N.Y. Misc. LEXIS 938 (N.Y. Sup. Ct. Mar. 5, 2012).
The New York State Department of Environmental Conservation ("DEC") recently proposed amending its Short and Long Environmental Assessment Forms ("EAFs"), and is accepting public comment on the revised forms through April 8, 2011. These forms are used in the environmental review process that is required under the State Environmental Quality Review Act ("SEQRA"), ECL §§ 8-0101 et seq., for any state action, which includes approval of project permits. The project sponsor and the lead agency undertaking the environmental review will complete an EAF (either long or short depending on the proposed action) to determine whether a full environmental review is warranted, that is, whether the applicant will need to prepare an environmental impact statement (EIS). Typically the Long EAF is used for Type I actions (these are actions, set forth in the regulations, that are more likely to require the preparation of an EIS), and the Short EAF is used for Unlisted Actions (which are actions that have not been listed in the regulations as Type I or Type II, and which are always subject to at least an environmental review). See 6 NYCRR §§ 617.4, 617.6.
On October 27, 2009 the New York State Court of Appeals made the most important decision regarding standing in SEQRA cases in perhaps the last 18 years. The court ruled in Save the Pine Bush v. Common Council of City of Albany, that standing to challenge the environmental impact of a proposed development is not limited to those who live near the location of the project. The court held that a person who "can prove he or she uses and enjoys a natural resource more than most other members of the public has standing under the State Environmental Quality Review Act (SEQRA)." This decision had been long awaited by environmental attorneys and environmentalists, as well as by city planners.