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Lawmakers Weigh Extending New York Frack Ban Until 2013

As the final days for public comment over proposed rules governing high-volume hydraulic fracturing (fracking) tick away, legislators in the New York State Assembly have introduced a flurry of bills on the practice, including one to extend a moratorium on it until June 1, 2013.

Meanwhile, additional legislation proposes empowering local governments to enact or enforce certain laws and ordinances. Such "home rule" powers could possibly be used by fracking opponents to prohibit the practice in their communities.

Last Wednesday the legislature -- in its first day of the 2012 session -- ordered the third reading of bill A7400, which calls for the extended moratorium and is a rewrite of the same bill Assemblyman Robert Sweeney (D-Lindenhurst) introduced last year. A7400 passed the Assembly last June but ultimately died in the state Senate (see Shale Daily, July 5, 2011; June 8, 2011). Its companion bill in the Senate is S5592.

John Holko, president of Lenape Energy Inc. and a board member of the Independent Oil & Gas Association of New York (IOGA), told NGI's Shale Daily that an extended moratorium would be devastating to oil and gas companies in New York and cause them to abandon their projects in the state.

"New York's landowners will have the biggest lost opportunity and it would devastate farmers and landowners in the southern tier," Holko said Monday. "Also, legislation passed by the Assembly previously would have created a moratorium on drilling permits -- including vertically drilled wells -- putting nearly 5,000 existing jobs at risk, too."

The call for an extended moratorium comes as the state Department of Environmental Conservation (DEC) works to finalize its recommendations in a revised supplemental generic environmental impact statement (SGEIS) on fracking.

"We hope that this bill, or any other like it, will not be considered at least until the SGEIS process actually concludes," Holko said. "We are working to help lawmakers have confidence in the regulatory process, even as we feel that the draft SGEIS goes too far in many respects."

Assemblywoman Barbara Lifton (D-Ithaca), a longtime foe of fracking in the Empire State, said she was co-sponsoring Sweeney's bill.

"We believe that this industry has not proven itself to be safe," Lifton told NGI's Shale Daily on Monday. "It is not capable of being regulated by the state at this point, and we want to continue to have a moratorium until it can be proven [safe]. Right now we're not satisfied with all of the work done by the DEC and the SGEIS work. We remain very skeptical and unconvinced that this can be done safely as it stands now."

DEC spokeswoman Emily DeSantis told NGI's Shale Daily on Monday that the agency has so far received a record 20,800 public comments over the proposed fracking rules. She added that the deadline would not be extended past Wednesday.

Twenty-two additional bills -- designed to either ban (A7218 and S4220) fracking outright or put restrictions on the size and scope of the practice -- were also introduced Wednesday, all but one of which were then submitted to the Environmental Conservation Committee. These include:

Another bill, A3245, has also found new life in the legislature. Sponsored by Lifton, the bill calls for "[clarifying] the role of municipalities in governing oil, gas and solution mining development within their jurisdiction." The bill passed the Assembly last year but died in the Senate.

"It's important to codify what I believe New York state case law has made clear -- that local municipalities, towns and cities still have zoning and land use authority," Lifton said. "Putting the case law into statute will be an enormous help to local governments that are being given conflicting messages about what our law says."

Holko asserted that the passage of home rule legislation in New York would drive operators to other states.

"We are especially concerned that these local laws are being considered in a vacuum, with local officials acting on very bad information and wildly inaccurate presentations of the work and history. We are likewise worried that these measures actually violate state law; two local laws are being challenged in court right now," Holko said, in reference to bans that the towns of Dryden and Middlefield have enacted (see Shale Daily, Sept. 21, 2011; Sept. 19, 2011).

Last month New York State Comptroller Thomas DiNapoli urged the DEC to create an industry-financed remediation fund to help pay for damages caused by Marcellus Shale development (see Shale Daily, Jan. 3). This followed decisions by the DEC to ask a consulting firm to analyze the potential costs of fracking, and to extend the public comment period over its proposal to regulate fracking until Wednesday (see Shale Daily, Dec. 27, 2011; Dec. 1, 2011).

The SGEIS is to provide the framework for DEC's fracking permit process. In July 2008 then-Gov. David Paterson ordered the DEC to complete the SGEIS, which effectively placed a moratorium on drilling horizontal wells in the New York portion of the Marcellus Shale. Paterson requested the SGEIS because the original impact statement was completed in 1992, before technological changes in shale development. In the closing days of his term Paterson extended the SGEIS deadline until July 1, 2011 (see Shale Daily, Dec. 14, 2010).

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