* Tuesday’s Tribune…

The director of the Illinois Department of Natural Resources testified Tuesday that if state legislators do not act to set rules governing horizontal hydraulic fracturing the agency will not issue fracking permits “absent a court order to the contrary.”

The rules were on the agenda Tuesday of the 12-member Joint Committee on Administrative Rules, but the committee defered action until Nov. 6. The committee has until Nov. 15 to adopt the rules or the process of formulating fracking regulations would start over again.

* Thursday’s Tribune…

On Wednesday, [Amy Pollard, who leased land to oil drillers two years ago] and a dozen other landowners filed suit against [DNR Director Miller] and Gov. Pat Quinn in Wayne County circuit court, claiming the state’s delay in issuing fracking permits is akin to an illegal land grab. […]

The legal argument being used is called “inverse condemnation.” It’s the idea that regulation of a property’s use has gone “too far,” depriving the owner of a property’s value or utility. The precedent for such an argument was established in a 1922 U.S. Supreme Court Case called Pennsylvania Coal Co. versus Mahon.

Taylor said that because the state won’t issue permits for fracking, which is not illegal in the state, landowners have lost the right to sell that land for other purposes.

Pollard, of Wayne County, said she is concerned her four-year lease will expire before oil and gas drilling can begin. She owns a title searching firm whose business quadrupled three years ago when landmen from 10 companies descended on the area.

Oh, please. The law says the rules have to be finalized by November 15th. It’s been clear all along.

* Ann Alexander of the NRDC, which favors a fracking moratorium but diligently helped draft the new law, calls them out…

First, there really is not a plausible option of DNR issuing permits before the rulemaking is completed. Sorry, there just isn’t. The reason we have rules is to define how the statute will be implemented in practice. Without them, everyone is pretty much flying by the seat of their pants on some pretty critical questions that DNR was specifically told to write rules about. Things like how to address earthquakes caused by underground waste disposal, how public hearings are going to be run, how permit modifications will be governed, how to get information about chemicals to doctors in an emergency, and how enforcement will go down if drillers violate the rules. While we can understand why industry would prefer that such things remain murky and undefined, it’s not acceptable to the rest of us, and not consistent with the statutory directive to define essential procedures via rulemaking. Industry may be having trouble letting go of its fond memories of the old Oil & Gas Act and the minimally regulated fracking free-for-all it allowed prior to the 2013 statute, but that train has left the station.

Second, getting JCAR to prohibit the rules will not make the statute go away. It will simply delay its implementation. Of course, as far as we’re concerned, delaying the start of fracking is a fine idea in principle – calling a halt to the state’s ill thought out fracking gold rush is, in the larger sense, exactly what we should be doing. However, we’re also aware that sending DNR back to the drawing board to go through the entire rulemaking process over again, so it can reach a more or less similar result, is not a particularly sensible way to achieve that larger end. By the same token, if industry is assuming it will get a result substantially more to its liking the second time around, it may be deluding itself. For all their rhetoric about the revised draft rules being inconsistent with the statute, the truth is pretty much the opposite. As we explained to JCAR in a set of supplemental comments, DNR’s revisions actually fixed a number of first draft provisions that badly undercut the statute’s public protections. We have every reason to expect that if DNR ends up having to try again, it will continue to do its job and put forth rules that support rather than undermine the law.

And finally, if we’re wrong, and if a post-election DNR were to fold its cards on a second go-round and issue a set of rules that satisfies industry but not the statute’s requirements, citizens are not without recourse. If a future iteration of the rules is incompatible with the statute, citizens can ask JCAR to address the problem. And if worst comes to worst, they will have the option to take legal action. While we would rather than no fracking be happening at all, we will do what’s necessary to ensure that what does happen is governed by the set of stringent rules that the statute requires.