A local lawyer has filed a lawsuit against New York State over a recent ban on hydraulic fracturing. This could set a precedent for other property owners hoping to file similar claims.
David Morabito is an experienced attorney that has worked on roughly 15,000 cases across his 34 years of experience. He has seen and dealt with the worst kinds of criminal cases, and now he is quietly taking his experience in the courtroom to a new front, a battle that upstate New Yorkers that support responsible energy development have been fighting for several long years.
Two months ago, Morabito has filed a lawsuit against the Department of Environmental Conservation (DEC) to challenge the state’s hydraulic fracturing ban, which prevents him from allowing natural gas development via fracking on land he owns in Alleghany County. This lawsuit represents a huge step for New York property owners and is a cause that is not lost on Morabito.
“This is about more than just me,” Morabito said in a phone interview. “If this can open the door for other landowners across the state, then I’m successful. I just felt I morally had to do it.”
In the lawsuit, Morabito says that he sought permission to permit fracking on his own property and in January was denied by Bradley Field of the DEC Division of Mineral Resources, who was instructed by Joe Martens, at that time the commissioner of the DEC. Morabito contends that these actions were “arbitrary and capricious” and cites the “very extensive and detailed studies and research” of the DEC, along with the “extensive rules and regulations” that the DEC has established to ensure the safety and integrity of fracking operations. Basically, Morabito is using the DEC’s own studies and research against them.
“Simply, the rules and regulations promulgated by the Department are more detailed, more concise, more stringent and have a greater impact in preserving water resources of the State of New York than any other state in the United States and the Federal EPA rules and regulations,” according to the suit.
Additionally, the suit takes issue with the DEC’s use of the Department of Health’s draft Supplemental Generic Environmental Impact Statement.
“The ‘study’ by the Department of Health was based on speculation and conjecture,” the suit states. “Further, the ‘study’ was not based on science, geology or technology but rather politics. As a result, the actions taken by the Department in denying the Petitioners (Morabito) the right to commence the process to obtain a permit, or to issue a permit, is clearly arbitrary and capricious and not based on science, geology or technology.”
Interestingly enough, Morabito considers himself an environmentalist and praises the work of the DEC in environmental guidance and his lawsuit claims that the DEC’s and the Division of Mineral Resources’ opposition to fracking is nothing more than an illusion.
“It is respectfully submitted that the rank and file employees of the New York State Department of Environmental Conservation/Division of Mineral Resources are in complete agreement and in favor of High Volume Hydraulic Fracturing in the State of New York,” according to the suit. “(They) have established extensive rules and regulations that were promulgated to protect the residents and citizens of the State of New York in oil and gas exploration. They have made their decisions on almost 25 years of studies and research based on science, technology and geology- not politics.”
The DEC quickly moved to have the case heard in Albany County as opposed to Alleghany, where Morabito and his property are located, seemingly in an attempt to get some sort of home-field advantage as DEC officials that “specialize” in this area are located in Albany. It’s a proposal that Morabito just as quickly filed against, noting that it would create an undue hardship being as, of course, he operates an active daily criminal law practice. However, he also shot back, submitting that it is “stunningly arrogant, obnoxious and demeaning to imply that the only input of personnel involved in the issues of the Petitioner are based in the County of Albany. There are an extensive number of Department of Environmental Conservation employees, and in particular, Division of Mineral Resource employees located throughout the State of New York in nine Regional Offices who are intricately involved in the promulgation of the Rules and Regulations of the New York State Department of Environmental Conservation.”
We are still in the early stages of this latest showdown between political interests and the right for New York property owners to pursue responsible natural gas development, and Morabito hopes that his actions are the beginning of an energy boom similar to the state’s southern neighbor.
“Rochester and Buffalo have the potential to be hubs for energy in New York,” he said. “There are many people here that have just completely misunderstood what fracking is, and I hope this opens the door to allow people to take advantage of a natural resource.”