It’s been a tough past few weeks for anti-fracking activists in the courts. Just after several courts in Ohio rejected anti-fracking ballot initiatives in a number of counties throughout the state, the Illinois anti-fracking movement suffered a similar fate.

The Mount Vernon-based 5^th District Appellate Court upheld a ruling by Madison County Third Judicial Circuit Court Judge Barbara Crowder denying activists’ request for a  temporary injunction on the Illinois Hydraulic Fracturing Regulatory Act’s (IHFRA) rules, which were published in November.

The court agreed with Crowder’s ruling that the plaintiffs – comprised of group of landowners and activist group Southern Illinoisans Against Fracturing Our Environment (SAFE) – failed to establish that they would suffer “irreparable harm” by the rules merely being published.

The three-justice opinion upholding Crowder’s ruling read:

“The court noted that in order to establish irreparable harm, facts must be alleged with certainty as to what harm the plaintiffs will incur. We agree with the trial court that the plaintiffs have not established a fair question that they will suffer an imminent, cognizable harm as a result of the use of the allegedly invalid rules during the pendency of the litigation.”

Crowder’s November decision read:

“Facts must be alleged with certainty as to what harm the plaintiffs will incur. Conclusory allegations that some of the plaintiffs have land near some areas where someone may file an application for a permit do not state irreparable harm. No applications have been filed, let alone granted. Plaintiffs have not established imminent harm or irreparable injury will occur simply by the publishing of the rules.”

As EID pointed out when SAFE filed this injection in November, this whole affair was clearly done in an attempt to create litigation limbo to stall shale development in Illinois, but SAFE had little chance of success.

Interestingly, SAFE actively shopped for a potentially sympathetic court to file their lawsuit, finding one in Madison County, which has very little oil and gas production and no known prospects for high-volume hydraulic fracturing. They were able to do so by filing the suit under the name of a Madison County resident. Madison County is located in metro St. Louis, more than 100 miles from the southeastern Illinois region where shale development is expected to occur.  In other words, they specifically sought out this court and were pinning their hopes on Crowder’s decision back in November.

Though Crowder denied the injunction, she has yet to dismiss the activists’ lawsuit, which centers on alleged procedural missteps by the Illinois Department of Natural Resources in the IHFRA rulemaking process.

But their hopes are dismal at best, as the IDNR correctly argues the alleged procedural missteps are all moot points, considering the rules have been in effect for months and because case precedent dictates that technicalities regarding rulemaking cannot be the grounds for overturning rules:

“It is well settled that the courts will not invalidate a legislative act merely because the legislative body fails to follow its own procedural rules. The rules at issue here may be invalidated only if they violate some constitutional or statutory provision.”