Appellate panel rejects request for immediate injunction to shut down IDNR fracking permit process

By Jonathan Bilyk | Jul 14, 2015

A state appeals panel has brushed aside an effort by a group of downstate landowners and other opponents of fracking to block from taking effect state rules to regulate the oil and gas extraction process, needed to allow the state to begin issuing fracking permits.

A three-justice panel of the Illinois Fifth District Appellate Court upheld the decision of Madison County Judge Barbara L. Crowder, who, in denying the request for a preliminary injunction to prevent the Illinois Department of Natural Resources from publishing the fracking rules, had found the landowners would not suffer “irreparable harm” merely from the rules’ publication.

“The court noted that in order to establish irreparable harm, facts must be alleged with certainty as to what harm the plaintiffs will incur,” the appellate justices wrote, speaking of the lower court decision.

“We agree with the trial court that the plaintiffs have not established a fair question that they will suffer an imminent, cognizable harm as a result of the use of the allegedly invalid rules during the pendency of the litigation.”

The opinion, delivered July 10 in Mt. Vernon, was authored by Justice Thomas M. Welch, with justices S. Gene Schwarm and James R. Moore concurring.

Named plaintiffs in the case include Marie Smith, Mark Donham, Vito Mastrangelo, Sam Stearns, Tabitha Tripp, Nathan Czuba, Annette McMichael and the organization known as Southern Illinoisans Against Fracturing Our Environment.

According to court documents, plaintiffs were landowners from several Illinois counties, many of whom also owned their properties’ mineral rights.

In 2014, the landowners brought the action in Madison County to prevent the IDNR from

officially publishing rules to govern the petroleum-extraction process technically known as hydraulic fracturing, and commonly known as fracking.

The process has been used with great success in other parts of the U.S. for years to boost the nation’s output of oil and natural gas. During times of higher oil prices, fracking also brought prosperity to many rural communities in other areas of the country. In Illinois, a 2012 study by the Illinois Chamber Foundation found fracking of shale oil and gas deposits in southern Illinois could contribute $9.5 billion to Illinois’ economy.

However, throughout the country, the process has also met opposition from many who worry about fracking’s impacts on the local environment, particularly on local water quality, and its effects on local geology, including the potential for generating mild earthquakes.

The IDNR had worked to draft the rules since Illinois lawmakers legalized fracking in 2013, but subject to regulations which were touted in published reports as among the strictest in the nation at the time.

The state agency then held an administrative review process to draft formal rules, and reviewing tens of thousands of comments submitted by Illinois residents and others.

The agency approved the final regulations to govern the process by which fracking permits would be reviewed in November 2014.

In their arguments, the plaintiffs conceded the state had not yet issued any fracking permits, nor was it reviewing any permit applications. But they said the act of publishing the regulations alone would cause them to suffer “irreparable harm,” as they argued decisions made by state officials when drafting the regulations and hearing public comment on the regulations had violated the state’s administrative review laws. As such, they said, an immediate injunction was needed to bar publication while their litigation over the regulations themselves proceeded.

However, both Crowder and the appellate justices said this argument fell short.

The judges agreed the concerns raised by the plaintiffs over the regulations, the process by which the rules were drafted, and fracking in general – as they include landowners and residents of communities near where fracking could be permitted – were legitimate subjects of litigation.

But the judges said the plaintiffs’ request for an immediate injunction was less so.

“The court concluded that ‘conclusory allegations that some of the plaintiffs have land near some areas where someone may file an application for a permit do not state irreparable harm,’” the justices wrote.

“The court noted that no applications have been filed, let alone granted.”

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