Claiming a violation against their Fifth Amendment right, the Joint Landowners Coalition of New York, Inc. – a pro-gas statewide organization – announced early this month they are willing to take the state government of New York to trial.

The potential class-action lawsuit will come if the Department of Environmental Conservation (DEC) fails to produce a set of regulations governing hydraulic fracturing by the end of February.

Scott Kurkoski, the coalition’s Binghamton-based lawyer, said the “de facto” taking of land by the state gives members of the JLCNY grounds for their suit.

“Under the Fifth Amendment of the United States Constitution the government cannot take private property without just compensation,” Kurkoski said. “We want the state to understand that the landowners of this state are not going to sit by while the state government takes their private property right.”

Since 2008, a state-mandated moratorium has prohibited the extraction of natural gas in

the Marcellus Shale deposit via hydraulic fracturing (fracking). Originally issued by former Gov. David Patterson, the moratorium has continually been renewed by Gov. Andrew M. Cuomo.

The current ‘deadline’ for the DEC to decide whether to implement a set of regulations governing fracking is Feb. 27. Previous delays as to whether natural gas extraction should be allowed were based on the lack of credible information regarding the economic, environmental and health affects of the fracking.

A draft impact survey known as the Supplemental Generic Environmental Impact Statement (SGEIS) – is being produced by the DEC in conjunction with the state Department of Health – was expected for release on Feb. 13. As of publication, the release of the SGEIS had been delayed.

Kurkoski said he was disappointed that the SGEIS was not released this past week, and the background for the case was being completed.

“We were again extremely disappointed that the DEC failed to release the SGEIS by [Feb. 13],” Kurkoski said. “They were supposed to, and it is obvious now that the regulations will no doubt not be completed by Feb. 27.”

Dan Fitzsimmons, the JLCNY’s president, said in a Feb. 8 newsletter that reasons behind the multiple SGEIS and fracking regulation delays were political in nature.

“Albany’s lack of firm leadership has needlessly delayed progress on this issue,” Fitzsimmons wrote. “It is obvious that the decisions to delay release are being made for purely political reasons. This must be stopped.”

Joseph Martens, the DEC Commissioner, said in a Feb. 12 statement that the SGEIS would not be complete until recommendations from the state Department of Health were delivered.

“[DOH Commissioner Shah] has indicated he expects his review to be complete in a few weeks after he has had an opportunity to review recent studies underway which are pertinent to the evaluation of high-volume hydraulic fracturing impacts on public health.”

Martha Robertson, chair of the Tompkins County Legislature, said opposition to fracking has been steadily growing around Tompkins County, primarily for health and environmental reasons.

“Opposition is growing in the southern tier the more people learn about fracking the more they dislike it,” Robertson said. “A study done by Cornell University showed that shale gas is more damaging to the environment than coal.”

Despite the ongoing back-and-forth between natural gas proponents, opponents and the state, a recent Siena College Research Institute poll of New York found that voters across the state are evenly split as to whether support or oppose fracking. 40 percent of voters statewide support the possibility of fracking in the state. Another 40 percent are opposed to possibility, while 20 percent have no opinion.

Steven Greenberg, a pollster for Siena, said even among voters in the Southern Tier, opinions were almost equally divided (47 percent support, 48 percent oppose). Likewise, Greenberg said that if the DEC were to eventually allow highly regulated fracking to occur, voter support would increase only slightly.

“These actions moved the dial ever so slightly,” Greenberg said. “But, across New York State the numbers are still pretty even.”

Requests for a comment or statement from the Department of Environmental Conservation and Gov. Cuomo’s office were unreturned by the time of publication.