“New York’s Fracking Ban May Spawn Litigation — Or Maybe Just Despair”
New York Gov. Andrew Cuomo made it official today, banning hydraulic fracking within the state after the Health Department issued a report listing numerous potential drawbacks to the oil and gas drilling technique.
The ban doesn’t change much on the ground, since fracking was already prohibited by moratorium since 2008. But it could give landowners and companies that paid millions of dollars for the mineral rights to drill in the gas-rich Marcellus Shale deposit a potential takings claim against the government for depriving them of property without payment.
When a state bans drilling, leaseholders have a much harder takings case to make against the government alone.
“Those are certainly more difficult cases to pursue, particularly if they’re not taking your property entirely,” said Hunter White, a partner with Thompson & Knight in Houston who represents oil and gas drillers. There could be emerging technologies to liberate oil and gas from shale without high-volume fracking, for example, but they also might be too expensive to make economic sense.