New York State Announces Fracking Ban for Health, Environmental Reasons

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By Gerald B. Silverman

Dec. 17 — The administration of Gov. Andrew M. Cuomo (D) announced Dec. 17 that fracking will be banned in New York state due to public health and environmental concerns.

The announcement was made at a publicly broadcast Cabinet meeting in which acting state Health Commissioner Howard Zucker released the results of a long-awaited health study.

State Environmental Conservation Commissioner Joseph Martens said the decision will be formalized in an environmental impact statement released early next year. The statement, which is called a Supplemental Generic Environmental Impact Statement (SGEIS), will be followed by a legally binding findings statement that will ban fracking, he said.

Neither the final SGEIS nor the findings statement will be subject to any further public comments, according to Martens.

“It is clear from the existing literature and experience that HVHF [high volume hydraulic fracturing] activity has resulted in environmental impacts that are potentially adverse to public health,” the 184-page study from the Department of Health said. “Until the science provides sufficient information to determine the level of risk to public health from HVHF and whether the risks can be adequately managed, HVHF should not proceed in New York State.”

The public health study identified seven areas of potential concern, including the impact of fracking on water, air, soil and climate change. It also identified concerns about the impact of fracking on earthquakes and community matters such as noise, traffic and odors.

The study involved an exhaustive review of existing research, field visits, independent consulting and collaboration with other public health agencies. Zucker said 4,500 staff hours were spent on the work.

“This has been probably the most emotion-charged issue that I've ever experienced,” said Cuomo, who has enacted laws legalizing gay marriage and imposing strict gun control.

Cuomo to Look at Replacement Opportunities

Cuomo said he would focus on finding economic development opportunities to replace fracking in the parts of the state that will be most affected.

Martens said the potential economic benefits of fracking were more limited than once believed due to a recent landmark state court decision and restrictions that would be placed on the natural gas drilling practice if it was actually permitted by the state (Wallach v Dryden,N.Y., No. 130, 6/30/14).

Martens estimated that less than 27 percent of the 12 million acres of Marcellus Shale in New York would actually be available for drilling, when considering the limits. The existing draft SGEIS, for example, prohibits fracking in the New York City and Syracuse watersheds, which cover 56 percent of the Marcellus Shale formation in the state, he said.

“With the exclusion of sensitive natural, cultural and historic resources and the increasing number of towns that have enacted bans and moratoria, the risks substantially outweigh any potential economic benefits of HVHF,” Martens said in a statement.

‘Ton of Lawsuits' Expected 

Cuomo told reporters at the Cabinet meeting that he expects “a ton of lawsuits.”

But Thomas S. West of the West Firm PLLC, a leading attorney for the industry, said he thought it was “doubtful that there will be a challenge to the final decision-making because most of the industry has written off New York State.”

“However, there may be takings claims as we now have a permanent ban on the only process that can be used to recover the valuable indigenous shale resources,” West told Bloomberg BNA in an e-mail.

West described the announcement as “a surprising decision that is not based upon science or the law.” He said the study's conclusions contradict the conclusions in the current draft SGEIS.

The issue of New York's decision was raised at the daily press briefing by Josh Earnest, the White House press secretary, who told reporters “the president has acknowledged that there is a role for both the state government and for federal environmental authorities to have on this.”

“In general, what I can say is the president has placed a high priority in ensuring that ongoing fracking operations don't negatively affect the health and well-being of people who happen to live in the area where these fracking operations are being conducted,” Earnest said.

Reaction Varies on Announcement

New York's decision was widely hailed by environmental groups and Democratic lawmakers but criticized by Republicans and business groups.

Sen. Dean Skelos (R), the co-leader of the state Senate, said “it appears that politics, not science, shaped this decision.”

“The decision implies that at least 30 other states, Senator [Charles] Schumer and the Obama Administration's Environmental Protection Agency are wrong about the health impacts and do not care about the well-being of millions of American citizens, and discounts the successes that are occurring in Pennsylvania and elsewhere,” Skelos said in a statement.

Leaders of the business group Unshackle Upstate and the Greater Binghamton Chamber of Commerce issued a joint statement saying the state “has yielded to a well-funded, fear-based propaganda campaign.”

“This lost opportunity would've generated millions in state and local revenues and tens of thousands of jobs across Southern Tier and other Upstate areas,” said the statement from Greg Biryla, director of development for Unshackle Upstate, and Lou Santoni, president of the chamber.

“Pennsylvania is proof-positive that with strong and common sense regulations, along with continuous technological advancements, shale development is a win-win for the state and our nation's environment and the economy,’’ Dave Spigelmyer, president of the Pittsburgh, Pa.-based Marcellus Shale Coalition, said in a statement.

To contact the reporter on this story: Gerald B. Silverman in Albany, N.Y., at gsilverman@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com