Madison - St. Clair Record

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Fifth District says no to injunction against state fracking rules

By The Madison County Record | Jul 14, 2015

MOUNT VERNON – Fifth District appellate judges have rejected a plea for immediate invalidation of new state rules on hydraulic fracturing for oil.

On July 10, they affirmed Madison County Circuit Judge Barbara Crowder in denying a preliminary injunction against the rules.

The rules remain in effect but the suit that eight landowners brought against the rules will continue.

For the moment, Justice Thomas Welch found their claims of harm too speculative to justify the extraordinary relief of a preliminary injunction.

“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,” Welch wrote.

Justices Gene Schwarm and James Moore concurred.

The Department of Natural Resources proposed rules in November 2013, to carry out the new Hydraulic Fracturing Act.

The department held its first hearing in Chicago, and four after that in oil producing areas of the state’s southern half.

The department received 38,000 public comments and 43,000 pages in writing. It revised the rules and the legislature’s joint committee on administrative rules adopted them last Nov. 6.

On Nov. 10, Marie Smith, Mark Donham, Sam Stearns, Tabitha Tripp, Nathan Czuba, and Annette McMichael sought relief in Madison County.

An eighth plaintiff, Mount Vernon lawyer Vito Mastrangelo, identified himself as counsel for himself and the rest.

All eight identified themselves as owners of land near likely fracking sites.

A ninth plaintiff, Southern Illinoisans Against Fracturing Our Environment, identified itself as a nonprofit group with a registered agent in Johnson County.

Plaintiffs alleged eight violations of the Administrative Procedure Act and a violation of the fracturing law.

They moved to enjoin the department from filing the rules and to prohibit Secretary of State Jesse White from publishing them.

White published them anyway, on Nov. 14.

At a hearing before Crowder on Nov. 18, the department argued that White’s action rendered a request for an injunction moot.

Crowder denied an injunction on Nov. 21, finding it wasn’t clear whether the department’s rule making violated the Administrative Procedure Act.

She wrote that plaintiffs established possession of a clear right or interest needing protection, a necessary element for a preliminary injunction.

She wrote that they raised a fair question as to their likelihood of success on the merits, another necessary element.

Unfortunately for plaintiffs a party seeking a preliminary injunction must establish four necessary elements, like a ball player who must touch four bases to score.

Crowder threw them out at third, finding they failed to show that irreparable harm would result if she didn’t grant an injunction.

“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. No applications have been filed, let alone granted,” she wrote.

She did not reach the fourth element, an absence of any other adequate remedy.

At the Fifth District, plaintiffs cited a precedent for a position that they didn’t have to touch any of the four bases.

The precedent didn’t hold up, however, because it involved a government agency seeking an injunction.

Welch wrote, “As noted by the defendants, the plaintiffs are private parties, not the state or a government agency, seeking to enjoin alleged violations of the Administrative Procedures Act, which does not expressly provide for injunctive relief for statutory violations.”

Attorney General Lisa Madigan represents the department.

Along with Mastrangelo, Penni Livingston of Fairview Heights and Natalie Laczek of Riverside represent plaintiffs.

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