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May 14 — While New York state's long-awaited environmental impact statement (EIS) on fracking doesn't explicitly ban the natural gas drilling practice, sources on both sides of the issue told Bloomberg BNA that there's no doubt an official ban will be put in place when the state environmental conservation commissioner issues a “findings statement.”
The voluminous EIS released by the Department of Environmental Conservation May 13 “lays out the scientific, technical and policy rationale for the ultimate determination not to permit high-volume hydraulic fracturing to proceed in the state,” Kate Sinding, senior attorney for the Natural Resources Defense Council, told Bloomberg BNA in an e-mail message.
“Yes, we are absolutely confident the Cuomo administration is banning fracking through the SEQRA [State Environmental Quality Review Act] process,” she said. “We have no doubt that the [final supplemental generic environmental impact statement] sets the stage for as ‘permanent’ a ban as could be legally effectuated short of a constitutional amendment.”
Under state regulatory procedures, the EIS, which is formally called a final supplemental generic environmental impact statement (FSGEIS), will be followed in no less than 10 days by a findings statement from state Environmental Conservation Commissioner Joseph Martens.
Thomas Mailey, a spokesman for DEC, told Bloomberg BNA May 13 that he couldn't say if the findings statement would contain an explicit fracking ban.
“Ultimately, the ban itself will be memorialized in the so-called findings statement, which is to be issued no less than 10 days from issuance of the FSGEIS,” Sinding said.
“That document will set forth the determination to ban fracking, as well as demonstrating that the decision is the result of the agency undertaking the legally required analyses and making the requisite findings,” she said.
Sinding said the EIS “contains what is legally required to sustain a determination to ban fracking, and it would be legally extraordinarily difficult to defeat.”
Scott R. Kurkoski, an attorney for pro-fracking landowners with the Binghamton, N.Y., firm Levene, Gouldin & Thompson LLP, told Bloomberg BNA “this will clearly be a ban in the final findings statement.”
Thomas S. West of the West Firm PLLC, an attorney for the oil and gas industry, told Bloomberg BNA that “the findings statement will be the place where there will be specificity concerning the extent of the ban and its duration.”
New York has had an effective moratorium in place on fracking for a number of years, and the state's highest court has ruled that local governments have authority to prohibit the practice.
The executive summary of the EIS, which contains some 28 volumes, said studies and experts have found that “significant uncertainty remains regarding the level of risk to public health and the environment that would result from permitting high-volume hydraulic fracturing in New York, and regarding the degree of effectiveness of proposed mitigation measures.”
“In fact,” it said, “the uncertainty regarding the potential significant adverse environmental and public health impacts has been growing over time.”
“The Department concurs with [the New York State Department of Health], as the uncertainty revolving around potential public health impacts stems from many of the significant adverse environmental risks identified in the SGEIS for which the Department proposed and considered extensive mitigation measures,” the EIS said.
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