Recent events arising out of New York’s moratorium on fracking, as well as localalities’ outright bans on said practice, are causing a rapid uptick in land-use litigation.
For example and as had been expected, an appeal has been filed with respect to recent decision from the Supreme Court– New York’s trial level court–that dismissed challenges by landowners and others to continued delays by the State of New York with respect to whether to permit hydraulic fracturing.
Those that have followed New York’s regulatory history with respect to hydraulic fracturing are acutely aware that New York has repeatedly deferred making any formal decisions with respect to how, when, and to what extent, hydraulic fracturing will be permitted in the Empire State. New York’s current stated position is that a decision will be made after a health review has been finalized. There is no timetable for completion of this review.
According to the challengers of the delay:
The denial of due process and the erosion of landowner rights should be of concern to all New Yorkers…Governor Cuomo and our New York agencies cannot be shielded by our courts when they fail to follow the law.
The government’s position is that it enjoys the discretion regarding the timetable by which it is entitled to conduct and finalize its health review. Typically, it takes approximately nine months to a year for appeals to be fully briefed, argued, and decided.
Meanwhile, at least one news outlet has published an Op-Ed describing how local New York bans which have been implemented (and which were upheld by the Court of Appeals) may theoretically create “taking” litigation within the meaning of the Fifth Amendment to the United States Constitution. Specifically, the legal question advanced is whether regulations or ordinances that, in effect, minimizes or destroys property values, constitutes a taking. This issue, including the nuances of takings law, was recently discussed in detail earlier this year by these practitioners.
In short, while New York is behind other states that have approved fracking, delays related to fracking are not slowing down litigation related to the practice.