Fracking defendants say rules already effective, urge court to dismiss 'moot' arguments

State officials facing suit from Illinois landowners seeking to suspend new state rules for hydraulic fracturing are urging Madison County Circuit Judge Barbara Crowder to dismiss the action, saying plaintiffs' arguments are moot because rules are already effective.

Fairview Heights attorney Penni Livingston filed the lawsuit on Nov. 11 on behalf of landowners.

In their suit, plaintiffs asked for declaratory judgment and preliminary and permanent injunction challenging the process followed by the Illinois Department of Natural Resources (IDNR) when it adopted rules for hydraulic fracturing, also known as "fracking."

The landowners argue that the IDNR violated statutory rulemaking procedures under the Hydraulic Fracturing Regulatory Act (HFRA) enacted by the state legislature in 2013. The Act requires the IDNR to adopt rules before permits can be issued.

Defendants IDNR, Director Marc Miller, former Illinois Governor Pat Quinn and Secretary of State Jesse White argue that dismissal is proper.

The defendants say that the rules the plaintiffs intend to suspend in their suit are already effective, and have been since they were filed on Nov. 14. The plaintiffs, on the other hand, believe the rules became effective after publication, an argument the defendants oppose.

The plaintiffs argue that the defendants were required to provide 20 days’ notice of a hearing on the matter, but the defendants counter that there is no such notice requirement.

Regardless, the defendants say the burden to invalidate rules is higher than what plaintiffs argue.

“It is well settled that the courts will not invalidate a legislative act merely because the legislative body fails to follow its own procedural rules,” the defendants state. “The rules at issue here may be invalidated only if they violate some constitutional or statutory provision.”

Plaintiffs have taken issue with the seating capacity in the room where a public hearing was held.

Recognizing that capacity was exceeded, the defendants say that the rules should not be invalidated “merely because, after at least 10 hours of receiving in-person public comment, not all citizens were able to be orally heard, since thousands of written comments were also submitted and accepted.”

Fracking is a process where a high pressure fluid is injected into a wellbore to create cracks in deep rock formations through which natural gas and petroleum will flow.

The plaintiffs include Marie Smith of Madison County, Mark Donham and Sam Stearns of Pope County, Tabitha Tripp of Union County, Nathan Czuba of Cook County, Annette McMichael of Johnson County, Vito Mastrangelo, an attorney from Jefferson County and plaintiff co-counsel, and Southern Illinoisans Against Fracturing Our Environment (SAFE).

“Plaintiff SAFE reports that the following health and environmental impacts of hydraulic fracturing have been recorded in scientific research: contamination of water supplies, displacement of wildlife, noise and light pollutions, earthquakes and seismic risks, silica dust hazards, low level radiation exposure, and increased burdens on infrastructure, especially in rural communities,” the lawsuit states.

Assistant attorney general Joshua D. Ratz of Springfield is representing defendants.

Madison County Circuit Court case number 14-CH-711