Shale Daily / NGI All News Access

New York Debate Enters New Stage as Fracking Rules Deadline Passes

As the state of New York missed Wednesday's deadline to create regulations for high-volume hydraulic fracturing (HVHF), supporters and opponents of the practice took aim at Gov. Andrew Cuomo, anti-fracking lawmakers sought a one-year moratorium, and a landowners group said it would sue the state over the delay.

Department of Environmental Conservation (DEC) Commissioner Joseph Martens essentially conceded on Feb. 12 that his agency would miss the deadline to complete its supplemental generic environmental impact statement (SGEIS) on HVHF (see Shale Daily, Feb. 13). Two weeks later, the lapse didn't appear to surprise anyone in the fracking debate.

"From the start, Andrew Cuomo has tried to have it both ways on [HVHF]: simultaneously appeasing his radical environmentalist base while ostensibly appearing business-friendly," New York Republican Party Chairman Edward Cox said Wednesday. "But by allowing politics to dominate what should have been a business decision, Andrew Cuomo has killed the competitive development of New York's natural gas reserves."

Cox added that hydraulic fracturing (fracking) created 57,000 new jobs in Pennsylvania and revived that state's manufacturing sector. But in the Empire State -- especially in the Southern Tier region that overlies the Marcellus and Utica shales -- New Yorkers are "merely getting a frustrating taste of 'what might have been' from the spillover from Pennsylvania."

In a letter to Cuomo on Wednesday, HVHF opponents cited Department of Health (DOH) Commissioner Nirav Shah's statement on Feb. 12 that his health impact analysis should incorporate the findings of three competing studies on the drilling stimulation practice. The opponents urged Cuomo to halt the rulemaking process until the studies -- led by the U.S. Environmental Protection Agency (EPA), Geisinger Health System and the University of Pennsylvania -- are completed (see Shale Daily, Feb. 22; Aug. 21, 2012).

"The [DOH] health review of HVHF should not be completed until the results from this trio of studies are included," opponents said. "Right now, we lack the meaningful data that these studies will provide. Your oft-stated promise that the science will determine your decision means waiting for that science to emerge."

Preliminary results from the Guthrie/Geisinger study may be released this year, but other results won't be available for five, 10 or 15 years. Meanwhile, final conclusions by EPA won't be issued until 2014, after a public comment period.

HVHF opponents also told Cuomo they want the DOH's health impact analysis opened to public comment and participation, and a comprehensive health impact assessment (HIA) on HVHF by an independent entity.

Martens asked Shah to conduct a health impact analysis on HVHF last September (see Shale Daily, Sept. 24, 2012). In a Feb. 12 letter to Martens, Shah said his panel of experts should complete their work "within a few weeks."

Although it is widely held that any regulations ultimately proposed by the DEC would be subject to a 45-day public comment period and possibly public hearings, Martens said earlier this month the DEC may still decide to move forward and process HVHF permit applications 10 days after the SGEIS is issued. "On background, there is nothing new to report since the commissioner's statement a couple weeks ago," DEC spokeswoman Emily DeSantis told NGI's Shale Daily on Wednesday.

On Tuesday, New York Assembly lawmakers introduced A5424, a shortly worded bill that calls for a one-year moratorium on HVHF and a ban on its permitting until May 15, 2014. The bill was referred to the Environmental Conservation Committee, a panel chaired by Assemblyman Robert Sweeney (D-Lindenhurst), a longtime foe of fracking (see Shale Daily, March 29, 2012; Dec. 2, 2010) and the bill's primary sponsor.

"There is hereby established a suspension of the issuance of permits for the drilling of a well for natural gas extraction in low permeability natural gas pools such as the Marcellus and Utica shale formations," the bill states. "The purpose of such suspension shall be to afford the state and its residents the opportunity to continue the review and analysis of any potential effects on water and air quality, environmental safety and public health."

Sweeney and Assemblymen Richard Gottfried (D-Manhattan) and Charles Lavine (D-Glen Cove) held a public hearing in January on proposed regulations governing HVHF (see Shale Daily, Jan. 11). Gottfried and Lavine are two of the 47 co-sponsors of A5424.

Jim Smith, spokesman for the Independent Oil & Gas Association of New York (IOGA), told NGI's Shale Daily that the organization wasn't surprised that Wednesday's deadline passed with no new developments, and rejected calls for a moratorium. "We didn't expect there would be much action on this day. We're certainly disappointed that more delay is occurring, but we're hopeful that the process is nearing an end. Obviously, we reject any call for a moratorium. We've had five years to do this, that's enough time."

The Joint Landowners Coalition of New York Inc. (JLCNY) decided to take its frustration one step further and said Wednesday it would move forward with a lawsuit against the state, on the grounds that Albany is taking its property rights. JLCNY released a letter seeking landowner candidates to serve as plaintiffs in the action.

"While our nation's leaders bring us closer than ever to achieving energy independence, cleaner air and economic prosperity, New York threatens to impede our progress and deny the constitutionally guaranteed rights of New York landowners," said JLCNY legal counsel Scott Kurkoski of Binghamton, NY-based Levene Gouldin & Thompson LLP.

Last June, Cuomo administration officials hinted that HVHF could first be allowed in five counties along the Pennsylvania border -- Broome, Chemung, Chenango, Steuben and Tioga -- provided that DEC grants regulatory approval (see Shale Daily, June 14, 2012). Local governments across the state have been choosing sides in the fracking debate (see Shale Daily, June 6, 2012,; June 4, 2012; May 22, 2012). In July 2008, then-Gov. David Paterson ordered the DEC to complete the SGEIS, which effectively placed a moratorium on drilling horizontal wells. Paterson requested the SGEIS because the original impact statement was completed in 1992, before technological changes in unconventional development.

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