The Environmental Working Group (EWG) has sued the New York Department of Environmental Conservation (DEC) and Governor Mario Cuomo (D), seeking access to records that petitioner claims were withheld from responses to requests made under the state’s Freedom of Information Law (FIL). Envtl. Working Group v. N.Y., No. 5159-12 (N.Y. Sup. Ct. 9/17/12).

EWG sought records relating to development of New York’s hydraulic-fracturing regulations, including environmental assessments of the anticipated impacts of increased production via hydraulic fracturing. According to EWG, the records consisted of correspondence and communications since January 1, 2011, among the governor, his aides, DEC, and “25 oil and natural gas companies and/ or representatives of those companies” relating to industry efforts “to influence the regulation of high-volume horizontal hydraulic fracturing in New York State.” EWG claims that it obtained only limited records, and that respondents “constructively denied access to the remainder of the records, without identifying the records withheld and without claiming that any of them were exempt from disclosure . . . .”

The suit claims that if DEC adopts as final its revised draft environmental impact statement and companion hydraulic-fracturing regulations, 50,000 gas wells in the New York portion of the Marcellus Shale could be allowed. The petitioner alleges that the drilling and fracturing processes pose “inherent risks” to drinking water, homes and health. EWG also alleges that it “suspected that influence by members of the oil and gas industry on DEC and the Executive Chamber might explain why the revised SGEIS [Supplemental Generic Environmental Impact Statement] and companion regulations were heavily tilted in favor of drillers and contained numerous scientific gaps and inaccuracies,” and sought the documents to “learn more about whether the drilling industry was exerting undue influence” on the hydraulic-fracturing issue.

Based on its assertion that it is “inconceivable” that more records do not exist, the suit asks the court to reverse determinations to partially deny EWG’s requests for documents, “declare that records were withheld,” order appropriate entities to undertake a diligent search for responsive documents, and order production of all responsive documents to be identified at a hearing.