Last week, Illinois’s Joint Committee on Administrative Rules voted to push back its decision about whether to approve proposed rules governing horizontal fracturing operations until November 6.  The delay promises to fuel uncertainty among fracing supporters and opponents alike about the legality of conducting unconventional drilling operations within the State if the draft rules are not ultimately adopted.

If the committee chooses not to accept the regulations by November 15, the Illinois Department of Natural Resources (IDNR)—the agency responsible for promulgating the standards—is obligated to restart the rulemaking process which promises to further postpone the implementation of state-wide standards for the foreseeable future.  IDNR officials have said that the agency will not approve any unconventional drilling permits without rules in place, unless told otherwise by the courts.

Oil and gas companies have refrained from conducting unconventional drilling while the regulations are in limbo. Brad Richards, an executive of the Illinois Oil and Gas Association, described the current situation:  “I think most of the [pro-fracing] coalition have been working under the assumption that we have to get [the rules approved] or this just starts over, short of a court order.”  He also pointed out that some oil and gas drillers have withdrawn from Illinois due to delays in passing the state-wide standards.  Some environmental groups have also expressed uncertainty about what will happen if the rules are not approved in November and want assurances that horizontal drilling will not be conducted in the state without regulations in place.

In response to the committee’s decision, a small group of mineral rights owners in southern Illinois have filed suit against the State, Governor Matt Quinn, and IDNR head Marc Miller.  The plaintiffs say they represent a class that exceeds 1,000 people.  In their complaint, the plaintiffs claim to have been denied permits to conduct fracing operations designed to take advantage of their mineral rights, which they allege constitutes a “taking of property without just compensation.”  The case is called Pollard et al. v. Illinois and was filed in the Circuit Court for the Second Judicial District of Wayne County.