A Genesee County-based gas driller has turned up the heat on the state Department of Environmental Conservation, calling on the agency to get involved in a local dispute over a drilling ban or risk facing a lawsuit.
Lenape Resources—which last month shut down its pipeline and operations in Avon, Livingston County, after the town passed a drilling ban—wrote a letter to the DEC today, threatening a suit if the DEC doesn’t step in within 10 days.
A pair of previous lawsuits have taken issue with the municipal hydrofracking bans—about 100 have been passed so far—but two state judges have ruled in favor of the towns. While state law declares that DEC and not local government has sole authority to regulate the gas industry essentially ruling that an outright ban doesn’t constitute regulation. (Those decisions are being appealed.)
Lenape, however, takes issue with two particular municipal hydrofracking bans—in the towns of Caledonia and Avon—and a third proposed for the town of York. Those bans are written with grandfather clauses and other provisions that the company claims violates state law.
Here’s where it gets interesting: Lenape threatens to name the DEC as a party to its possible lawsuit. The two previous lawsuits have only mentioned the towns that passed the ban.
“This letter serves as Notice required under (state law) that Lenape may initiate legal action authorized by (state law) to enforce (said state law) if the Department, through the Attorney General fails to act, naming the Department as party to any proceedings,” Lenape President John Holko wrote.
And here’s where it gets interesting, part two: The DEC would be represented in a lawsuit by Attorney General Eric Schneiderman’s office, who during his 2010 campaign took a strong stance against hydrofracking.
Asked for a response to the Lenape letter, a spokeswoman for the DEC was very brief (perhaps the byproduct of a potentially impending lawsuit).
“The scope of the preemption must be left to the courts,” said Emily DeSantis, the spokeswoman.