(Photo: AP)


ALBANY – A legal challenge to New York's ban on large-scale hydraulic fracturing has been hidden in plain site since May.

East Rochester attorney David Morabito quietly filed a lawsuit two months ago against the state Department of Environmental Conservation, challenging the agency's decision to prohibit him from fracking on land he owns in Allegany County.

To this point, the lawsuit has garnered little public attention, in part because Morabito initially chose not to publicize it and it was filed in state Supreme Court in Allegany County.

But the challenge could set the stage for the courts to decide whether the newly installed statewide ban on high-volume fracking has legal merit and comes as natural-gas trade groups weigh whether to file a lawsuit of their own.

"If you analyze and critique the (DEC's) studies, they're all in favor of high-volume hydrofracking," Morabito said by phone Friday. "My argument is the state of New York's studies based on science, technology and geology allow me to conduct high-volume hydrofracking on my property."

Morabito's lawsuit focuses specifically on his Allegany County property but could set a precedent for other landowners.

In the suit, the attorney says he had asked the DEC for permission to apply for a permit that would allow him to make use of the hydraulic fracturing process on his property.

He received a letter in January from then-DEC Mineral Resources Director Bradley Field informing him the state's moratorium on fracking -- it's since been upgraded to a ban – prohibited him from doing so.

Morabito argues the decision was "arbitrary and capricious" because various drafts of the state's extensive review of fracking have concluded it's a "viable and acceptable" method for capturing natural gas.

The lawsuit focuses exclusively on Morabito's property. But it could set a precedent for other landowners hoping to file similar claims.

Lori Severino, spokeswoman for the DEC, declined comment on the specifics of Morabito's suit.

"We don't comment on pending litigation, however, lawsuits on this issue were expected and we're confident the state's decision to prohibit fracking will withstand any legal challenge," Severino said in a statement.

John Armstrong, a spokesman for New Yorkers Against Fracking and Frack Action, a pair of anti-fracking groups, said Morabito's claims about the safety of hydraulic fracturing are "baseless and directly contradicted by hundreds of peer-reviewed scientific papers that demonstrate significant harms and risks to public health, the environment, and local communities."

"Unfortunately, this lawsuit regurgitates more of the same reckless denial-of-science propaganda we've long seen from the gas industry," Armstrong said. "Based on the facts and for the health, environment, and well being of all New Yorkers, this frivolous lawsuit should swiftly be thrown out."

The legal challenge was filed May 27 -- after Gov. Andrew Cuomo's administration in December promised a statewide fracking ban but before it was made official in late June.

Morabito said he will amend his complaint, if necessary, to account for the more-recent developments, but said he will wait until a judge decides whether the suit will be heard in Allegany County (as he wants) or in Albany (as DEC wants).

A lawsuit against the state's official, statewide ban on fracking would have to be filed by late October, since state law limits challenges to agency determinations to 120 days after the decision is made.

Gas-industry trade groups have been examining the potential for a legal challenge, including the state's chapter of the American Petroleum Institute.

Morabito's suit names DEC Commissioner Joe Martens and Field as defendants, though it will likely be passed on to their successors. Martens is leaving his state post at the end of the month, and Field retired in April.

Late last month, Martens said he expected challenges to the state's ban but is confident it will hold up.

"I think when this is challenged -- and it will certainly be challenged -- the courts will see that we were deliberative, that we explored every aspect of hydraulic fracturing inside and out and certainly there was a progression of thought," he said.

JCAMPBELL1@gannett.com

Twitter.com/JonCampbellGAN