Over the past year, the fight to authorize fracking has taken different forms in various states across the country, including lawsuits challenging the legality of local fracking bans in both New York and Colorado, and a lawsuit in New York seeking to compel the state government to complete its nearly six-year-long review of fracking.  This past week, landowners in Illinois took a novel approach to the issue, alleging that Illinois’ delay in issuing rules to regulate fracking amounts to a regulatory taking, and seeking monetary damages to compensate them for this injury.

Unlike New York, where a moratorium on fracking is in place and a state review of fracking’s costs and benefits has been underway for over half a decade, the Illinois state legislature actually passed a law in May 2013 that authorizes fracking within the state.  The alleged delay in the implementation of fracking has resulted because the state has not yet adopted rules to regulate the authorized fracking.  Although the rules, which were drafted by the Illinois Department of Natural Resources, are currently awaiting approval by the state legislature’s Joint Committee on Administrative Rules, if the committee does not approve them by November 15 of this year, the rule-making process must start again from the beginning.  The Department of Natural Resources stated that it will not issue fracking permits until the rules are passed, absent a court-order.

Rather than seeking such a court order, or moving to compel the government to release the rules, owners of mineral rights on the New Albany Shale in southern Illinois have styled their claim as a Constitutional violation, and filed a class-action seeking monetary damages. In their complaint against the Illinois governor and the director of the Department of Natural Resources, the plaintiffs allege the state’s delay amounts to a taking of their mineral rights without just compensation, in violation of the Fifth Amendment, as well as Illinois’ constitution and state laws. They allege that the class will exceed 1,000 landowners, and that they are each entitled to more than $50,000 in damages.  By pursuing an action for regulatory taking rather than seeking a court order to compel the government to take action, the Illinois plaintiffs may avoid the fate of the New York landowners’ suit to force the state to complete its review of fracking, which was dismissed for lack of standing in July. The Illinois government has not yet responded to the complaint, and the Product Liability Monitor will continue to report on developments in the case as it moves forward.