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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.
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.
posted by Rich Miller
Thursday, Oct 16, 14 @ 4:47 pm
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The heavy lift is done; the law was passed. Rules will be implemented in accordance with the law.
It’s like yelling at the microwave to hurry up.
Comment by Wordslinger Thursday, Oct 16, 14 @ 4:59 pm
Actually, Ann’s comments are wrong. If there is a statute in law, the Department can issue permits. Rules are simply additional guidance or refinement. The Department stopped issuing permits for conventional oil and gas drilling several months ago until faced with a mandamus action in court and they backed down and began issuing permits.
The problem with Ann’s group and others is that they SUPPORTED the fracturing law and now want to have it both ways. They got eviscerated by the far left crazies and big donors so they are trying to cover their tracks. It’s unfortunate that the word of many environmental groups is no good.
Director Miller testified on Tuesday that the CURRENT administration will not issue permits without rules but that a new administration or court action could result in permits if rules are not implemented.
Comment by 1776 Thursday, Oct 16, 14 @ 5:03 pm
Delay, delay, delay…..
Any bets on a request for an extension on Nov 15th…..?
Comment by plutocrat03 Thursday, Oct 16, 14 @ 5:39 pm
They’d have to pass another law to get that done, and I doubt there’s any way they could do that. JCAR will deal with it.
Comment by Rich Miller Thursday, Oct 16, 14 @ 5:43 pm
JCAR must deal with it by Nov 15th or I believe DNR would have little recourse but to start issuing permits.
Comment by downstate hack Thursday, Oct 16, 14 @ 5:51 pm
Fire Director Marc Miller - this guy had no qualifications to be appointed Director other than Quinn’s friend and his inexperience with policy continues to show. What a waste of taxpayer money his salary is.
Comment by Miller Time Thursday, Oct 16, 14 @ 6:15 pm
This is a political law suit and has little substantive law to support it. There is no “taking”; USSC case law much more recent than 1922 has established as much; a state may regulate and may take a reasonable time to do so under a reasonable statute. This time is not unreasonable.
Comment by D.P.Gumby Thursday, Oct 16, 14 @ 7:07 pm
The environmental community has a real problem. The leaders try to bargain in good faith while at the same time fundraising on over the top rhetoric. In the end they can’t keep their word because of pressure from members who can’t seem to get past the bumper sticker fund raising slogans. The environmentalists who try to act like big kids at the table take heat from both sides because ultimately they can’t keep their word to anybody.
Comment by Apple Picker Thursday, Oct 16, 14 @ 7:09 pm
Ann Alexander dilligently helped draft a law that she hoped would prove impossible to comply with and then tried to make it worse with rules that are not authorized by the law. Praise of her is misguided.
Comment by So Il Landowner Thursday, Oct 16, 14 @ 7:11 pm
“Oh, please. The law says the rules have to be finalized by November 15th. It’s been clear all along.”
Don’t believe that’s right. If the rules aren’t finished by Nov 15th the whole rule making process resets and DNR would have to start over with a new 1st draft, public hearings, public comment, etc, etc, etc. End the end, more endless delays that industry is not willing to accept.
Comment by Drill Stem Thursday, Oct 16, 14 @ 8:22 pm
=== DNR would have to start over with a new 1st draft===
I seriously doubt that’s going to happen. And if it does, then the lawsuits would seem to have merit.
Comment by Rich Miller Thursday, Oct 16, 14 @ 8:35 pm
“I seriously doubt that’s going to happen. And if it does, then the lawsuits would seem to have merit.” Couldn’t agree more. Which likely explains the timing of the lawsuit. Legally premature perhaps, but notice has been served.
Comment by So Il Landowner Thursday, Oct 16, 14 @ 8:47 pm
Industry regularly and correctly says thousands of fracking jobs have been done in Illinois. IDNR has issued plenty of permits for both vertical fracking and for horizontal drilling. But high volume fracs covered under the new law? How many applications have been submitted? Any? No. It’s public record. So IDNR is being sued for …. not issuing permits no one has applied for? Transparent election year nonsense. Bad lawyering.
Comment by Drill Down Thursday, Oct 16, 14 @ 9:44 pm
I’d say that there needs to be some serious changes up and down the line at DNR. Too many excuses and they are out of time. Either move or be moved.
Comment by Ginhouse Tommy Thursday, Oct 16, 14 @ 9:58 pm