Marcellus Shale Moratorium in New York, But Only Until May

Posted on November 30, 2010 by David Mandelbaum

 

 On November 29, the New York Assembly passed A1143B/S08129B which had previously passed the Senate.  Governor Paterson is reported to be prepared to sign the bill, although the New York Times blog reports that industry groups are still pushing for a veto.  The bill, if signed, would impose a moratorium on new permits for natural gas wells that use hydraulic fracturing until May 15, 2011. 

 
Reports are that New York is allied with Pennsylvania in trying to break the logjam on natural gas well regulations at the Delaware River Basin Commission.  That suggests some division in the New York approach.  Some believe that the moratorium until May 15 is just political posturing because it will not really mean much.  Note that no permits can be granted in New York until NYSDEC finalizes its Revised Generic Environmental Impact Statement.   With a gubernatorial transition upcoming, May is not likely to be much further out than the GEIS, so this action may be more cosmetic than important.
 
The text of the bill follows.
 

       AN ACT to suspend hydraulic fracturing; and providing for the repeal  of
         such provisions upon the expiration thereof

         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

    1    Section 1. There is hereby established a suspension of the issuance of
    2  new permits for the drilling of a well which utilizes  the  practice  of
    3  hydraulic  fracturing  for the purpose of stimulating natural gas or oil
    4  in low permeability natural gas reservoirs, such as  the  Marcellus  and
    5  Utica shale formations.
    6    The  purpose  of  such suspension shall be to afford the state and its
    7  residents the opportunity to continue the review  and  analysis  of  the
    8  effects  of hydraulic fracturing on water and air quality, environmental
    9  safety and public health.
   10    For the purposes of this section, "hydraulic  fracturing"  shall  mean
   11  the  fracturing  of rock by fluid for the purpose of stimulating natural
   12  gas or oil for any purpose.
   13    This section shall not apply to permits issued prior to the  effective
   14  date  of this act which utilize hydraulic fracturing that are subject to
   15  renewal.
   16    S 2. This act shall take effect immediately, and shall expire  and  be
   17  deemed repealed on May 15, 2011.


 
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Polar Bears and Climate Change -- A Second Look

Posted on November 5, 2010 by Caleb Holmes

Recently, a district judge ordered the Department of the Interior to reconsider its listing of polar bears as "threatened" rather than "endangered" under the Endangered Species Act.  In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation, No. 1:08-mc-764-EGS (D.D.C. Nov. 4, 2010).  The polar bear faces a threat because of the disappearance of sea ice, which the government attributes to climate change.  Under the listing decision, if the polar bear is "threatened," one cannot sue emitters of greenhouse gases for violations of the Endangered Species Act, 16 U.S.C. § 1531ff.  See 73 Fed. Reg. 28,212 (May 15, 2008).  That would not be true if the polar bear were classified as "endangered."

The specific question addressed by Judge Sullivan was whether the government properly relied on the "plain meaning" of the term to decide that the polar bear was not "endangered."  The statute contains ambiguities that the government has to address.  The court remanded the rule for the limited purpose of providing that additional explanation, and gave the government a deadline of December 23.  He will then consider the substance of the challenges to the rationale for the "threatened" listing.

On November 3, Karl Rove is reported to have announced to a large meeting of the natural gas industry that "climate is gone."  Comprehensive federal climate change legislation may be "gone," but the risk is not.  As we have previously commented, greenhouse gas emissions now face regulation under the Clean Air Act, and that is an awkward, expensive, and uncertain tool for the purpose.  As In re Polar Bear suggests, the litigation risk to greenhouse gas emitters also persists, and on relatively indirect theories

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Seeking a Lone Pine Order in an Environmental Mass Tort

Posted on November 2, 2010 by Caleb Holmes

Mass torts can create burdens for both the judiciary and litigants.  In order to prevent the use of mass torts to extract unjustified settlements, some courts have used "Lone Pine orders" as a case management tool to require plaintiffs to substantiate allegations of injury and causation before continuing with litigation.  The Lone Pine order takes its name from Lore v. Lone Pine Corp., a toxic court case in which a New Jersey Superior Court required plaintiffs asserting personal injury claims to provide evidence of exposure to, and causation by, substances from the defendant landfill at the outset of the case.  Lone Pine orders have subsequently been employed in other state and federal jurisdictions.  For an in-depth look at factors to consider when seeking a Lone Pine order, click here for an article by David Weinstein and Chris Torres of GT Tampa.
 

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