Metro-East News

Madison County judge to issue decision on Illinois’ fracking regulations

In this 2013 file photo, a protester attends a rally after a House committee hearing on “fracking” legislation at the state Capitol in Springfield. The oil and gas drilling technique is off to a feeble start across Illinois as slumping oil prices and the rigors of Illinois’ new regulations have energy interests cautiously waiting on the sidelines.
In this 2013 file photo, a protester attends a rally after a House committee hearing on “fracking” legislation at the state Capitol in Springfield. The oil and gas drilling technique is off to a feeble start across Illinois as slumping oil prices and the rigors of Illinois’ new regulations have energy interests cautiously waiting on the sidelines. AP

Regulations that govern high-volume hydraulic fracturing in Illinois are still unsettled after a Madison County judge heard arguments on whether to dismiss a lawsuit challenging the way the regulations were written.

High-volume hydraulic fracturing, also known as fracking, is the process of using water, chemicals, pressure and explosions underground to loosen up earth in order to extract oil and gas.

The anti-fracking plaintiffs, who are Southern Illinois landowners, are challenging the Illinois Department of Natural Resources’ high-volume fracking regulations on administrative grounds. The plaintiffs argue that the IDNR didn’t follow proper procedures in setting the language of the law.

Many, if not all, of the plaintiffs’ challenges are based on what the state views as technicalities, such as providing the contact information of the people who organized public hearings to discuss them.

The Illinois Attorney General’s office declined to comment on the case because it is still pending.

At the hearing on Feb. 11 in Madison County Circuit Court, the state asked for dismissal of the case. Associate Judge Clarence Harrison asked both sides to submit proposed rulings within 45 days.

At a hearing Feb. 11, Associate Judge Clarence Harrison gave the parties 45 days to submit proposed rulings

Some of the plaintiffs’ 13 allegations include that the IDNR failed to make someone available to answer questions at public forums when the law was proposed; that the forums were poorly managed; and that the 2013 Hydraulic Fracturing Act violated landowners’ rights, as companies could extend underground pipes to take the landowners’ oil without warning, which the plaintiffs said was trespassing.

To those three allegations, the state said that the IDNR representative was not required to answer questions; that reasonable limits to meetings don’t invalidate them; and that potential trespassing doesn’t mean it will actually happen.

Fracking critics say the process causes earthquakes and pollutes water and air.

Harrison recognized the plaintiffs’ passion for environmentalism and said that Livingston was “cheerleading” for the cause.

“It’s hard not to,” Livingston replied.

The case stretches back to the 2013 passage of the Hydraulic Fracturing Regulatory Act, which governs high-volume horizontal fracking operations — those that use more than 300,000 gallons of water and chemicals in the extraction process.

The act was signed on June 17, 2013. In November of that year, the IDNR, which had been instructed to write the regulations for fracking, released the first notice of proposed rules and scheduled five public forums to hear comments from the public.

After collecting 38,000 comments and 43,000 pages of written comments, the IDNR revised its proposed rules and gave them to a legislative committee to review and authorize them.

On Nov. 6, 2014, the legislative committee adopted the IDNR’s proposed rules.

Illinois’ fracking rules were approved in November 2014

Four days later, the plaintiffs filed a complaint for declaratory judgment and asked for an injunction, which would have stopped high-volume fracturing immediately.

The injunction failed, but the lawsuit survived. The Illinois Attorney General’s office filed a motion to dismiss the suit, so the plaintiffs amended their complaint to address the issues the state’s lawyers raised. The state then filed another motion to dismiss in May 2015. That hearing that was heard on Feb. 11.

Because the injunction failed, energy companies can engage in hydraulic fracturing right now if they wanted, though the IDNR reports that it has not received any applications for high-volume well permits since the Hydraulic Fracturing Act passed.

That’s because low oil prices are discouraging investment, said Brad Richards, the executive vice president of the Illinois Oil & Gas Association.

Illinois has not received any applications for high-volume well permits since the Hydraulic Fracturing Act passed, due to low oil prices.

If the General Assembly hadn’t dragged its heels in passing the Hydraulic Fracturing Act and settled on the regulatory language sooner, Richards said, then the state’s oil industry could have invested in and benefited from hydraulic fracturing.

The only two companies registered to frack in the state are Strata-X, based in Denver, and Kimmeridge Tri-State Exploration, which is from New York.

The companies declined to comment on how the case could affect their operations in Illinois.

Casey Bischel: 618-239-2655, @CaseyBischel

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