When New York's fracking "ban" was announced December 17, 2014, there was great excitement and celebration for what was the culmination of a seven-year campaign, ending with a surprising, first-of-its-kind prohibition of an inherently dangerous gas extraction technique.
But the December announcement was merely a promise and placeholder while the Department of Environmental Conservation took the next six months to perfect the legal structure by which high-volume hydraulic fracturing would be banned in NY while extensive fracking infrastructure remains very much in place. Part of DEC’s task was not only to lay out the justification for such precaution, but also to create a record and process that could be defended in court.
What makes this ban especially unique is that it has taken a rare pathway under the State Environmental Quality Review Act (SEQRA), where the process officially concluded in “no action.” Typically, environmental reviews either result in approvals with some mitigation or they just lose momentum and never get finalized. Developers, industry lobbyists and their political supporters have become so accustomed to controlling SEQRA decisions that the fracking ban has them crying foul. Without any apparent sense of irony, the industry has charged that DEC is “violating the rules” through this decision when, in fact, we may be seeing SEQRA working to its fullest extent for the first time in 40 years.
On May 14th, the DEC released its Final Supplemental Generic Environmental Impact Statement (FSGEIS) for High Volume Hydraulic Fracturing (HVHF), and the public was given the opportunity to pore over thousands of pages of material that established the foundation for the ban. While much of the review was retread from the previous 2011 document, there were significant new findings in DEC’s response to the more than 180,000 public comments that cast doubt upon whether the state could ever responsibly execute a safe and profitable fracking program.
In a remarkable reversal in approach, the DEC identified critical health risks, detailed specific case studies of contamination, challenged its original rosy projections of economic benefit, and explained the risks to the state’s climate change goals and renewable energy programs.
In accordance with SEQRA, the DEC was charged with weighing several alternatives to the primary objective - a full HVHF regulatory program. In addition to the preferred “no action alternative,” DEC contemplated using “green fracking chemicals” and other mitigations, phased permitting, and sparing “special places.”
But in consideration of the Department of Health’s review of over 400 peer-reviewed studies, the DEC concluded that the safety of fracking was too uncertain, especially as mounting information further implicated fracking as inherently dangerous.
On June 29, the DEC issued its Final Findings Statement, which brought the entire process to a close with this conclusion:
In the end, there are no feasible or prudent alternatives that would adequately avoid or minimize adverse environmental impacts and that address the scientific uncertainties and risks to public health from this activity. The Department’s chosen alternative to prohibit high-volume hydraulic fracturing is the best alternative based on the balance between protection of the environment and public health and economic and social considerations.
How Strong is the NY Ban?
In New York, the permanence of any ban is often as strong as the prevailing political temperament. But this Final Findings Statement creates thorny legal conditions that will make it considerably difficult for any future governor to reopen the fracking issue. For one, it is clear under SEQRA that any attempt to revisit this HVHF decision will require an entirely new environmental impact statement, complete with the same public process that has proven to be a political nightmare for previous governors. Any such review would require overwhelming new information to reverse the numerous negative assumptions made about the risks of fracking – particularly in the realm of public health.
In addition, both the FSGEIS and the Final Findings Statement make it clear that, if the state were to decide to move forward with HVHF, it would come with a considerable upfront price tag ($125 million for the first five years) and that no regulatory structure could be deemed legitimate without that funding. Allocation of such public funds is a function of the legislative process and, in a very direct way, the FSGEIS places a new layer of consent by requiring de facto legislative approval of any future HVHF program. It is hard to imagine erosion of the current anti-fracking sentiment in the Assembly any time soon.
Future Challenges with Fracking in NY
The Final Findings Statement is a strong document that follows SEQRA and should survive legal challenges if they come. The courts have a long history of deferring to the expertise of the regulating agency (often to the detriment our own environmental suits), so it is very unlikely industry suits will reverse the ban. Opponents of the decision have until October 29 to file suit.
But there are still challenges to protecting New York from the worst effects of fracking. For one, the ban is limited to “high volume” gas extraction, which is defined as using 300,000 gallons or more for the initial well development. “Low volume” gas wells are still permitted under the weak conditions dictated by the 1992 GEIS on Oil, Gas and Salt Solution Mining. New York has seen a precipitous drop in well applications for low-volume drilling, but the Sierra Club will monitor any uptick in activity and challenge any unsafe practices.
Of particular concern is the reemergence of fracking technology that substitutes liquefied propane gel for water as the fluid base. The FSGEIS suggests that such a practice would not be banned by the HVHF prohibition (as it uses lesser amounts of water) and would be subject to the requirements of the 1992 GEIS. While we await the next steps from DEC as various drillers apply for permits to use propane as a fracking fluid, it is clear that such a proposal will require a full environmental review that could rival the process that has impeded HVHF for the past seven years.
So far, propane gel fracking has proven to be uneconomic, dangerous and unfeasible on a large scale. Just the replacement of water delivery trucks with hundreds of tankers of highly flammable LPG traversing NY’s roadways should give any regulator pause. At this point, most regard gas fracking as a stunt meant to test the perimeters of the ban, rather than a legitimate new threat.
But while gas extraction has been banned or largely curtailed in the state, we still are under siege by the proliferation of natural gas infrastructure proposals: pipelines, compressor stations, gas storage facilities, power plants and export terminals. Currently, New York is reviewing dozens of clean water certification permits and air quality permits for major pipelines proposed to traverse the state. But all these permits that would destroy hundreds of wetlands and stream crossings are being viewed in isolation; neither state nor federal regulators are looking at the cumulative environmental or economic impact of this full buildout. Even though the Federal Energy Regulatory Commission has already rubber-stamped approval of multiple pipelines, the state has the power to deny permits until such a cumulative impact assessment is conducted.
Just before the Final Findings Statement was issued in June, Governor Cuomo released the state energy plan. The underlying goals -- 50% of the state’s energy will come from renewable sources and our greenhouse gas emissions will be reduced 40% by 2030 -- are laudable and could provide a vision for the rest of the country. But the plan also acknowledges that the state will also increase consumption of natural gas over the same time period.
New York’s fracking ban has the legal structure to stay in place for quite a while, but this historic policy decision is only half the equation required to combat climate change and foster energy independence. There is still so much left to fight for.