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New York Fracking Decision on Hold

New York Department of Environmental Conservation (DEC) Commissioner Joseph Martens last week rejected a call to conduct an independent review of the public health impacts of high-volume hydraulic fracturing (fracking) and instead has asked the New York State Health commissioner to assess DEC's health impact analysis to determine whether to permit fracking in the state.

Gov. Andrew Cuomo had been expected to issue a final ruling on whether to allow fracking to proceed but with Marten's announcement, that decision would appear to be delayed for an undetermined period of time.

New York State Health Commissioner Nirav Shah agreed to assess DEC's health impact analysis. Shah also was asked to identify the "most qualified outside experts to advise him in his review. While the review will be informed by outside perspectives on the science of fracking, the decision making will remain a governmental responsibility," said Martens.

Once Shah's evaluation is completed, a decision is to be made "about whether to permit high-volume hydraulic fracturing in New York," said the DEC chief. "Obviously, if there was a public health concern that could not be addressed we would not proceed. The process to date has been designed to maintain public trust in the integrity of DEC's review, and Dr. Shah's assessment will assure New Yorkers that we have thoroughly examined all the issues before making a final decision."

DEC a year ago published a revised supplemental environmental impact statement on high-volume fracking, followed by draft drilling rules (see NGI, Oct. 3, 2011; Sept. 12, 2011). Since the proposed rules were issued, DEC "has been reviewing approximately 80,000 comments submitted," said Martens. A "wide variety of issues are addressed by the comments," with many focused on health impacts.

"I have had numerous conversations with many of the parties on all sides of this issue," he said. "I have recently met with several of the groups who have raised public health concerns and it is clear they are not satisfied with the department's effort to address potential public health impacts. The groups would require that DEC conduct an outside health study that would determine the outcome of the final decision. I reject that demand. I believe it is highly likely that some of these groups will pursue litigation following the conclusion of the departmental process if they do not agree with the outcome."

Martens said "deferring to an outside group or entity would be an inappropriate delegation of a governmental responsibility. Government is the public's independent reviewer; that is the essence of the current process. To suggest private interests or academic experts bring more independence to the process than government is exactly wrong.

"Many experts in this field have an opinion -- pro or con -- which could influence the process. Nor could one ever be sure that there weren't potential conflicts of interest with outside consultants if they were to actually direct the outcome. It is the government's responsibility to ensure objectivity and a review directed by DEC and the Department of Health is without bias."

Shah's "review will also ensure the strongest possible legal position for the department given the near certainty of litigation, whether the department permits hydrofracking or not."

Cuomo's instructions on whether to lift a moratorium on high-volume fracking in the state had been "clear from the outset -- let the science determine the outcome," said Martens. Cuomo wanted to make sure the DEC had done "the most thorough review possible, especially when it comes to public health concerns."

Martens said he also wanted to make sure the DEC "has the most legally defensible review so that when the department issues its final determination on this matter, protracted litigation is avoided, whatever the outcome." By asking for the health commissioner to review the analysis, "I believe this action addresses any legitimate request for additional due diligence and study as well as ensuring DEC's ultimate decision on hydraulic fracturing is beyond reproach either as a matter of law or as policy.

"I believe the action also protects the independence of the DEC while availing ourselves of the best possible advice from the private and academic sectors. While I am sure these actions will not satisfy all parties, I do believe it will result in the most thorough review of high-volume hydraulic fracturing in the nation, regardless of the final decision."

Meanwhile, the Environmental Working Group (EWG) last week sued Cuomo's administration to obtain documents that would show how the state had drafted drilling rules. The petition, filed in the State of New York Supreme Court, County of Albany, seeks records from the DEC and the governor's office (No. 5159-12). EWG's original freedom of information law (FOIL) request filed last March sought to determine whether the state's decision-making process on the drilling issue was "fair, transparent and based on science," as it said Cuomo had promised.

The lawsuit contends that the Cuomo administration failed to honor EWG's request under the FOIL for "full disclosure of public records" that showed communications between the governor, six senior administration officials and about two dozen representatives of the oil and natural gas industry. The contacts were said to have occurred "during the critical period between Jan. 1, 2011 and March 6 of this year, when industry representatives were striving to influence environmental regulators charged with drafting a 1,500-page plan that would govern future drilling," according to EWG.

"We already know that state regulators gave drillers exclusive behind-the-scenes access to draft regulations that were stacked in favor of natural gas companies and riddled with scientific gaps," said EWG General Counsel Heather White. "The Cuomo administration's grudging response to our FOIL request raises questions about its commitment to science and open government."

The lawsuit preceded a letter sent to Cuomo last week by representatives from 14 conservation groups and more than 425 statewide officials that called on the governor to reject any plans to expand gas drilling. Instead, the groups want the governor to expand renewable energy sources. Among those signing the letter were representatives from 350.org, Delaware Riverkeeper Network, Earthworks, Sierra Club Atlantic Chapter, Citizen Action of New York, Food & Water Watch and Catskill Citizens for Safe Energy.

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