In Smith v. Department of Natural Resources, the Illinois Appellate Court for the Fifth District affirmed a trial court’s ruling denying a complaint for a preliminary injunction to prevent the implementation of the Illinois DNR’s fracking regulations.  As has been widely reported (see here), the Hydraulic Fracturing Regulatory Act and the initial draft of the regulations were put together by a coalition of environmentalists, industry folks, legislators, and regulators, but that coalition has apparently been fraying.

The Plaintiffs in the Smith case were several individuals and Southern Illinoisans Against Fracturing Our Environment, and they made several arguments against the implementation of the regulations, including the argument that DNR failed to comply with several procedures that were required when creating the regulations.  The trial court denied plaintiff’s motion for preliminary relief, and the appellate court affirmed.  The appellate court based its ruling on a procedural point, i.e. that Illinois law only allowed government agencies, not private parties, from being awarded an injunction for violations of the rulemaking requirements:

“As noted by the defendants, the plaintiffs are private parties, not the State or a government agency, seeking to enjoin alleged violations of the Administrative Procedure Act, which does not expressly provide for injunctive relief for statutory violations.  Section 5-35(b) of the Administrative Procedure Act (id.) does expressly authorize challenges to the adoption of regulations on the ground of noncompliance with the procedural requirements; however, this provision does not explicitly provide for injunctive relief where the Administrative Procedure Act has been violated.”

Although the plaintiffs claimed that injunctive relief is necessary because they live near sites where fracking could potentially occur under the regulations, the appellate court rejected that claim because it was “too speculative” as no fracking applications have been “filed, let alone granted.”  On those grounds, the appellate court concluded that the plaintiffs failed to establish a fair question as to whether they have been irreparably harmed, and the appellate court did not need to address the remaining arguments concerning plaintiffs’ attempts to obtain a preliminary injunction.