New York State DEC Slammed for Trying to Bury Propane Fracking

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Tom Shepstone
Shepstone Management Company, Inc.

An Albany County, New York judge just told Andrew Corruptocrat Cuomo his DEC’s excuse for sitting on a propane fracking application was palpably absurd.

A rather blunt and amazing fracking decision just came down from an Albany County, New York Associate Supreme Court Justice Catherine Cholakis on January 3rd. She called one DEC’s defense’s for sitting on a propane fracking application four years “palpably absurd” and ordered the agency to proceed with a review of the submission. It doesn’t mean a permit will ultimately be issued for the propane fracking discussed in Jim Leonard’s guest post here on Tuesday, but it does force DEC’s hand. It’s a big win for the rights of upstate landowners to develop their natural resources.

The New York State Southern Tier is treated like a colonial territory by the Cuomo administration. The DEC lords assigned by the governor to manage the affairs of residents have said hydraulic fracturing is bad for them. They’ve denied landowners the ability to harvest their natural resources using this technique. Necessity being the mother of invention, the landowners have said “well then, let us do propane fracking.” They submitted an application to Andrew Cuomo’s DEC, which has now sat on the thing for nearly four years and refuses to even respond anymore.

That’s the short summary of what happened until Tioga Energy Partners filed a lawsuit demanding DEC at least hold a hearing on its application. That has now resulted in a remarkable decision and order to DEC by the Albany County Supreme Court Justice.

[Reminder: New York State is compelled by its sense of superiority to be different and calls its county courts “Supreme Courts.” What the rest of the world calls a supreme court is the Court of Appeals in the Empire State.]

This county court decision and order, therefore, can and probably will be appealed but it’s a win, nonetheless. Moreover, the simple cogent arguments made by Justice Cholakis are going to be hard to refute. Here are the relevant excerpts, which speak for themselves (emphasis added):

Petitioner commenced this CPLR Article 78 proceeding to compel respondents to schedule and hold an administrative hearing pursuant to ECL § 23-0305(6) on its application for two well-drilling permits. Petitioner also seeks an order compelling respondents to process its application as expeditiously as possible, as required under ECL § 23-0501(3). Respondents have moved to dismiss the petition. For the reasons that follow, the motion is denied…

The first of these wells would be drilled vertically into the Utica Shale formation; the second would be drilled horizontally into the Marcellus Shale formation… What sets petitioner’s project apart from others is that it would employ gelled propane in lieu of water as the agent used for drilling the wells. Fracking with gelled propane has never been done in New York, though the technique is in use elsewhere.

Petitioner filed its formal applications in the spring of 2015. At respondents’ request, petitioner provided additional information on its applications in July and October 2015. On April 15, 2016 respondents issued a “Notice of lncomplete Application” (NOIA) which indicated that certain necessary information was lacking from the applications. Petitioner responded with additional information on August 3, 2017.

On October 13, 2017 respondents issued another NOIA… Petitioner provided its responses to the second NOIA on October 30, 2017. Respondents subsequently requested some additional information. Petitioner submitted responses to these ·requests on November 10, 2017; February 8, 2018; and February 15, 2018.

Since this latter date, respondents have made no additional requests for information. They have issued no other NOIA. Petitioner has made numerous inquiries on the status of its applications. Some of these generated no response; others were met with terse answers which can be paraphrased; in sum and substance, as “We’re working on it.” Respondents ultimately told petitioner to address its questions to their counsel. Upon doing so, petitioner was told by  respondents’ counsel that ‘”all aspects of the referenced applications remain under Department review. We are still evaluating what additional information/materials may be required from the applicant. We have no additional information at this time, and will notify you as soon as we do’”

On August 20, 2018 petitioner filed with respondents a “Petition for Hearing.” This document recited a brief history of the permit applications and requested a hearing pursuant to ECL § 23-0305(6). According to petitioner, respondents neither scheduled the requested hearing nor responded substantively to a followup letter dated September 25, 2018. This lawsuit followed.

The present proceeding, in the nature of a mandamus to compel, seeks an order directing respondents to schedule a hearing; to provide notice of the hearing; to conduct the hearing; and to direct respondents to process the well drilling permit applications as expeditiously as possible…

Respondents contend that the issues raised by petitioner are not ripe for judicial review because there has been no final action on the part of the administrative agency involved. Respondents, however, are missing the point: petitioner does not seek review of respondents’ actions; petitioner seeks an order compelling respondents to act… when an agency refuses to act in an area where action is mandated, Article 78 relief is available in the absence of a final determination…

Respondents also contend that ECL § 23-0305(6) does not create a right to a hearing. The provision in question states:

The department may act upon its own motion or upon the application of any interested person. On the filing of an application concerning any matter within the jurisdiction of the department, pursuant to this article, the department shall promptly fix a date for a hearing thereon, and shall cause notice of the hearing to be given. The hearings shall be held without undue delay after the filing of the petition. The department shall make its order within sixty days after the conclusion of the hearing (emphasis added)…

The only decisional authority provided by respondents in support of their position is an unpublished decision by an administrative law judge (ALJ) (Matter of Advocates for Cherry . Valley, DEC Case No. OHMS-66175 [June 13, 2011]). In Matter of Cherry Valley, the ALJ denied an adjudicatory hearing on a well drilling permit application where that hearing was requested by a public interest group. The ALJ’ s decision was based upon the language of ECL § 23-0305(2), which states, “No rule, regulation, order or amendment thereof … shall be made … without a public hearing.” The ALJ reasoned that, since a well drilling permit application is not a “rule, regulation, order or amendment thereof,” no hearing was required.

The reasoning of Matter of Cherry Valley is clearly flawed. The mere fact that a hearing is a necessary prerequisite to the issuance of rules, regulations and orders does not allow the inference that only rules, regulations and orders require a hearing. Under the ALJ’ s line of reasoning, since no person can become a lawyer without a bachelor’s degree, anyone with a bachelor’s degree must be a lawyer. This is palpably absurd…

In short, the right to a hearing in this particular context may reduce to nothing more nor less than the right to transparency, the right to require an agency involved in a complex process to allow interested parties some assurance that their matter is being handled with appropriate care and diligence.

Finally, respondents argue that mandamus to compel does not lie in this case. They contend that the Court lacks jurisdiction to order a discretionary administrative determination. As with their analysis of ripeness, however, respondents miss the point of petitioner’s argument. Petitioner is not asking the Court to order respondents to grant their well drilling applications; instead, petitioner is asking the Court to order respondents to move forward with the process of reviewing their applications. Petitioner understands that the granting or denial of the applications is a discretionary determination outside the ambit of CPLR Article 78. The jurisdictional foundation of the petition is built on the proposition that, while respondents have the discretion to grant the well drilling permit applications or to deny them, respondents do not have the discretion to ignore them.

That’s a nice analysis. Governor Corruptocrat can order his DEC what to do but he can’t tell them to stonewall on an application, which is precisely what’s happening. The DEC staff is not the problem here; they were processing the application, albeit at a crawl, until some politrical hack above them obviously said “sit on it.” The DEC attorney, who’s only representing the governor, is also not to blame. There is but one person to blame and that is America’s dumbest governor who, if he had a brain rather than a voracious political appetite, would realize this is the way to go in opening the door a crack for the Southern Tier without ruffling too many fractivist feathers.

The post New York State DEC Slammed for Trying to Bury Propane Fracking appeared first on Natural Gas Now.


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