Lenape files NY lawsuit to overturn fracing moratorium

Lenape Resources Inc. has filed a lawsuit against Avon, a town in Livingston County, NY, to overturn a municipal moratorium on hydraulic fracturing for natural gas exploration and production.

The lawsuit also names the New York state Department of Environmental Conservation (DEC), which regulates gas development for the state of New York. DEC awaits completion of a health study and public comment before finalizing its draft on state regulations for high-volume fracing.

Meanwhile, DEC has filed a revised draft of proposed high-volume fracing regulations with the New York Department of State. A decision has yet to be made on whether to permit fracing in New York.

New York has had a temporary moratorium on high-volume fracing since 2010 to give DEC time for to develop proposed rules. New York Gov. Andrew Cuomo has received pressure from both sides of the debate. DEC will accept public comments on the latest draft starting Dec. 12 and ending Jan. 11, 2013.

Meanwhile Avon’s town board earlier this year enacted a moratorium and prohibition that restricts gas development. Lenape of Alexander, NY, owns and operates wells and a pipeline in Avon.

The lawsuit, filed in November, asks for $50 million for Lenape if Avon’s moratorium is upheld. The lawsuit said the town is responsible for “unconstitutional” regulations resulting in lost revenue for Lenape Resources from its Avon wells.

Lenape Pres. John Holko said, “New York state is proposing the most stringent regulations in the country, and even that does not matter to the special interest groups that are trying to shut us down.”

Michael Joy, an attorney representing Lenape, said dozens of townships are trying to stop gas development in upstate New York.

“These towns need to understand that the state regulates all aspects of natural gas development, period,” said Joy of Pittsburgh, who is with the law firm of Reed Smith LLP.

The New York State Court of Appeals already has said that local government are without power to enact laws, rules, regulations, or ordinances in matters where the subject matter of regulation is addressed by the state, Joy said.

Contact Paula Dittrick at paulad@ogjonline.com.

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