Hepler Broom, LLC

Fracking Update: Environmentalists Seek to Stop Fracking Before it can Start

November 14, 2014

A year after the Illinois Department of Natural Resources proposed the first draft of the administrative rules regulating high-volume hydraulic fracking, the Joint Committee on Administrative Rules approved the final rules on November 6, 2014, which are to be published in the Illinois Register by November 15, 2014.

Several Southern Illinois landowners and an environmental group, Southern Illinoisans Against Fracturing our Environment (SAFE), filed suit this week in Madison County seeking an injunction against the recently passed Horizontal Fracturing Regulatory Act rules. Plaintiffs are trying to stop the recently approved fracking rules from being published, which will trigger the start of high-volume hydraulic fracking in Illinois.

Because the text of the rules has not yet been released, plaintiffs are not challenging the rules themselves. Instead, they are challenging the rule making process. They claim the process “violated mandatory statutory and administrative rulemaking procedures and is therefore invalid.” In addition to asking the court to stop the rules from being published, plaintiffs are also seeking an injunction that “directs the IDNR to renew the rulemaking process” and start the process over again. The alleged procedural defects include:

  • Failing to consider scientific studies;
  • Failing to provide sufficient notice of public hearings;
  • Failing to have agency representatives available to answer questions at public hearings;
  • Denying citizens admittance at public hearing;
  • Denying citizens to speak at public hearings;
  • Failing to put the rules on the IDNR regulatory agenda;
  • Failing to timely submit a required report to the Illinois General Assembly.

The IDNR issued a statement Wednesday saying the agency “acted in an open and transparent manner throughout the rule making process that resulted in historic levels of participation” and that it responded “thoughtfully” to issues raised by the public. Likewise, the Illinois Manufacturers’ Association issued a statement defending the rule making process, saying the rules were “analyzed during a thorough and exhaustive process.”

A hearing is scheduled before Judge Crowder on Tuesday, November 18, 2014, at 9:00 a.m. But that is after the expected publication date of November 15th.

Not all landowners opposing fracking, or the rules. Last month, a group of landowners filed suit in Wayne County, complaining the state was taking too long to approve the rules. They have leased their properties to oil and gas companies, and complained that the long delay was the equivalent of illegal government seizure of their property.

The future of fracking in Illinois remains in doubt, at least with respect to when it may start. The recent court challenges by proponents and opponents of fracking will impact the development of the fracking industry in our state. And these challenges during the rule making process foreshadow challenges during the permitting process.