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Expected lawsuits don't follow NY fracking ban


ALBANY - Gov. Andrew Cuomo and his top commissioners braced for lawsuits when they announced plans to ban large-scale hydraulic fracturing in late 2014.

They weren't alone: Advocates on both sides of the years-long debate over natural-gas drilling in the Marcellus Shale had assumed it would be the courts -- not the governor -- that ultimately decided fracking's fate in the Empire State.

So far, they've been wrong.

As of Thursday, only one lawsuit challenging the fracking ban had been filed in the two years since Cuomo and his top commissioners officially put the ban in place.

And that suit -- filed by East Rochester attorney David Morabito -- was dealt a blow last week when a mid-level appeals court dismissed it, ruling Morabito didn't have proper standing to sue.

The lack of litigation has been a surprise to those who spent years closely following New York's highly contentious fracking debate, including Walter Hang, an Ithaca-based environmentalist who helped organize opposition to fracking in the Southern Tier.

"Absolutely, I thought there was going to be litigation," said Hang, who owns an environmental database firm. "It just never happened."

Heated battle

Major natural-gas companies began targeting areas of the Southern Tier in late 2007, aided by advances in fracking technology that made it possible to tap into tight, underground formations like the Marcellus Shale, which covers a wide swath of upstate.

It set off a heated battle between Southern Tier landowners -- many of whom were reeling from years of economic decline -- and anti-fracking advocates, who warned of the potential for damage to the state's land, water and air.

Cuomo's health and environmental conservation commissioners recommended banning high-volume fracking in December 2014, putting an end to the six-year review process that spanned two governors, countless hearings and raucous protests at the state Capitol and beyond.

The ban was officially put into place the following June.

Since then, the gas industry has declined to challenge New York's ban, instead focusing its drilling efforts in Pennsylvania and other states where fracking is allowed and even welcomed.

Previous efforts by the industry and landowners to fight fracking bans at the local-government level were unsuccessful, with the Court of Appeals -- New York's top court -- ruling against them.

Karen Moreau, executive director of API New York, the state chapter of the major gas-industry trade group, said the litigation route is "fraught with challenges."

"The companies that we represent generally are looking to develop where the states are receptive," Moreau said Thursday. "Many of those companies made business decisions at the time to continue developing elsewhere."

Hang said the lack of a challenge from the gas industry is a testament to the strength of the anti-fracking movement.

"I think that the pressure on the governor to prohibit shale fracking was so intense that the people who would normally take legal action have been deterred because they realize it's just an incredible fight," he said.

Only suit

Morabito, meanwhile, first filed his lawsuit in May 2015.

The attorney, who owns land in Allegany County, argued that the state's fracking ban is "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.

But a state Supreme Court judge tossed Morabito's suit last year, claiming he didn't have standing to sue because he hadn't officially applied for a drilling permit.

Last week, the Appellate Division of the Supreme Court agreed, unanimously upholding the lower court ruling.

Morabito said Thursday he intends to continue his lawsuit. But he will need help from the Court of Appeals.

Since the Appellate Division ruling was unanimous, he will have to seek the Court of Appeals' permission to appeal to the state's top court. Morabito says he intends to do so, and if that doesn't work, he intends to move on to the federal courts.

Morabito expressed frustration with API, questioning why the trade group didn't latch on to his lawsuit. He is representing himself.

"I was offended that API did not intercede on my behalf," Morabito said. "They have the legal ability, they have the knowledge, they have the capability."

Still, Morabito says he plans to exhaust his legal options.

"The ability to conduct high-volume hydofracking on landowner’s private properties will bring economic prosperity to the residents of upstate New York and create enormous tax revenues for the Empire State," he said.