A lawsuit that could have stopped the Village of Painted Post from selling large quantities of water to a Shell subsidiary for fracking use has been dismissed.
Now, the residents and environmental groups that brought the lawsuit will have to decide whether to appeal the decision to the state's top court.
In 2012, Painted Post officials approved a five-year water sales agreement with SWEPI, LP, the Shell subsidiary. Under the agreement, SWEPI was able to withdraw up to a million gallons of water per day from a village aquifer; it was using the water for hydraulic fracturing in Pennsylvania natural gas wells.
Over the five-year life of the agreement, the village would have received a minimum of $3.2 million. Because the withdrawals were tied to fracking, anti-fracking activists have followed the case closely.
Previously, a judge sided with the residents and environmental groups that challenged the deal. In his March 2013 decision, State Supreme Court Justice Kenneth Fisher voided the water sale agreement. His decision said that the village did not conduct an adequate environmental review before entering into the agreement.
Last week, a panel of Appellate Division justices reversed Fisher's decision. But it didn't rule on the adequacy of the village's environmental review. Instead, it struck down the lawsuit on relatively technical grounds; the justices said that none of the defendants had legal standing to challenge the environmental review.
Rachel Treichler, the attorney who represented the residents and environmental groups, says the two courts' differing decisions increase the likelihood that the state's top court, the Court of Appeals, would agree to hear the case.
Treichler also says that, though it may no longer apply, Fisher's ruling still shows that the village's environmental review of the agreement is flawed.