Landowners Not Entitled To Injunction Against New Fracking Rules

Landowners Not Entitled To Injunction Against New Fracking Rules

  Wednesday, July 15, 2015    Julie Tappendorf

---

A group called Southern Illinoisans Against Fracturing Our Environment (SAFE), along with the owners of property in various counties in Illinois, sued the Department of Natural Resources to seek an injunction against DNR's adoption of rules under the Hydraulic Fracturing Regulatory Act. The plaintiffs claimed that DNR failed to follow the statutory rulemaking procedures by:

1. failing to include a summary of the proposed rules on the agenda; 
2. failing to give sufficient notice of the public hearings on the proposed rules; 
3. failing to respond to questions about the rules; 
4. denying some people the right to speak during the hearings by establishing a predetermined 2 hour period for the hearings; 
5. failing to disclose studies, reports, and other data used to draft the proposed rules; 
6. providing false statements in the first notice when it indicated that the proposed rules did not affect units of local government;
7. not publishing the hearing transcripts in a timely manner;
8. failing to submit a report to the General Assembly as required by the Act.

The plaintiffs argued that these failures deprived plaintiffs of their rights under the Administrative Procedure Act, and filed a motion for preliminary for injunctive relief to prohibit the state from publishing the rules and enforcing them.  The state objected to the motion, arguing that the plaintiffs did not show they could succeed on the merits of their claim that the state's rulemaking process violated state law.  The trial court agreed with the state, and denied the plaintiffs' request for an injunction. The plaintiffs appealed.

The appellate court also denied the plaintiffs' request for an injunction to stop enforcement of the new rules, finding that the plaintiffs failed to show they would suffer irreparable harm, one of the necessary elements to obtain an injunction. Specifically, the court held that the plaintiffs' claims are too speculative to justify "the extraordinary relief afforded by the issuance of a preliminary injunction."  Smith v. Department of Natural Resources, 2015 IL App (5th) 140583

Post Authored by Julie Tappendorf