Painted Post loses case over fracking water
A state appellate court has upheld a lower court ruling that voids agreements the Village of Painted Post had with a hydraulic fracturing company in Pennsylvania to sell surplus water.
The case involved a challenge by three environmental organizations and five individuals who claimed the Village of Painted Post sold water from its municipal water system for hydrofracking in Pennsylvania without conducting a review of the environmental impacts of the water sale agreement under the State Environmental Quality Review Act, or SEQRA.
On New Year’s Eve, the state Supreme Court Appellate Division Fourth Department agreed, concluding the water sale agreement was not an exempt action under SEQRA, as the village had claimed.
“On the merits, we agree with petitioners that the village’s determination that the Water Agreement was a Type II action and not subject to SEQRA review was arbitrary and capricious," the court wrote in its opinion.
The village in 2012 signed a five-year deal with Shell Oil subsidiary SWEPI LP that village officials anticipated would generate an additional $2.5 million a year in income. But the Sierra Club and other environmental groups filed a lawsuit, claiming the village improperly conducted environmental impact reviews as required by state law.
A trial judge agreed with the Sierra Club position and in March issued an injunction preventing the village from selling the surplus water.
The Appellate Division reversed that ruling, stating that one of the parties to the lawsuit, village resident John Marvin, did not have standing, meaning he did not have the right to file suit.
The state Court of Appeals overturned that decision, ruling that Marvin does have standing, and sent the case back to the Appellate Division, which ultimately affirmed the original trial court decision.
A group called People for a Healthy Environment was among the parties that brought the lawsuit, and former group president Ruth Young, of Horseheads, hailed the appellate court ruling.
“Selling our drinking water for out-of-state fracking operations is like selling blood plasma to support a drug habit," Young said in a news release. "Fracking destroys water in order to blast more climate-damaging fossil fuels out of the ground at a time when we are all supposed to be working to get off of carbon altogether. The New Year’s Eve ruling strikes a blow for public health and sanity in the Southern Tier.”
Painted Post Deputy Mayor Richard Thorne said the village now has three options — challenge the decision in the state Court of Appeals, start the process from scratch or abandon it altogether.
The village doesn't have the resources on its own to continue a legal fight or to repeat the entire process, Thorne said, and it will be up to SWEPI LP to decide whether it wants to bankroll an appeal.
Thorne said the village drew a lot more water from the aquifer without any environmental harm in the past when the old Ingersoll-Rand foundry was open, and he believes the lawsuit was politically motivated.
"It's an anti-fracking fight, and we're just a pawn in the game," he said. "Historically, we have withdrawn much greater amounts of water consistently than we have with this water deal. Nobody objected to that."
Follow Jeff Murray on Twitter @SGJeffMurray.