On June 29, 2015, the New York State Department of Environmental Conservation issued its Findings Statement which officially prohibits high-volume hydraulic fracturing to develop natural gas resources in the Marcellus Shale. The issuance of the Findings Statement concludes a nearly seven-year endeavor by the Department to evaluate the environmental impacts of hydraulic fracturing under the State Environmental Quality Act. The Department relied upon information in the Supplemental Generic Environmental Impact Statement, issued by the Department on May 13, 2015, and more than 260,000 public comments in making the determination that hydraulic fracturing should be banned statewide. Specifically, the Department found that “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” hydraulic fracturing. As a result, the Department concluded that prohibiting 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.”
On May 13, 2015, the New York State Department of Environmental Conservation (NYSDEC) released its Final Supplemental Generic Environmental Impact Statement (SGEIS) on the Oil, Gas and Solution Mining Regulatory Program, signaling the completion of its environmental review of high-volume hydraulic fracturing. NYSDEC previously released drafts of the SGEIS in September 2009 and September 2011, which generated more than 260,000 public comments during the applicable review periods. The final SGEIS will be followed by the issuance of a legally-binding Findings Statement by the NYSDEC Commissioner, Joseph Martens. Last December, the New York State Department of Health recommended prohibiting hydraulic fracturing, based upon the agency’s public health review, and Commissioner Martens anticipated that his Findings Statement would include a ban on high-volume hydraulic fracturing.
Chesapeake Energy Corp. and lease partner StatoilHydro have reportedly agreed to end a two-year legal battle to extend 200 natural gas drilling leases covering approximately 13,000 acres in southern New York, near the Pennsylvania border. In a settlement announced on September 9, 2013, the companies agreed to drop the appeal of a November 2012 federal district court ruling in Aukema v. Chesapeake Appalachia LLC, which found that New York’s moratorium on high-volume hydraulic fracturing was not a force majeure event capable of unilaterally extending the leases. New York officials recently told a state legislative committee that there is still no timeframe for a decision on whether to lift the moratorium.
New York State officials said on May 1, 2013 that there is “no timetable on a decision” to lift the state moratorium on hydraulic fracturing. The Commissioner of the New York Department of Health said that new information obtained during a recent meeting with the U.S. Environmental Protection Agency will be included in the state’s public health review of hydraulic fracturing. A February 12, 2013 press release from the New York State Department of Environmental Conservation previously indicated that the public health review would be complete “in a few weeks.”
The New York State Assembly recently passed legislation to extend the moratorium on high-volume hydraulic fracturing until May 2015, but the measure faces an uncertain future in the state Senate. Supporters of the moratorium, which has been in place since 2008, claim that more time is needed to study the impacts of hydraulic fracturing.
New York missed the February 2013 deadline to release an environmental impact report, which would have provided guidelines for drilling regulations. However, New York Department of Environmental Conservation (DEC) Commissioner Joseph Martens reportedly stated that DEC would issue permits before drafting regulations if the New York State Department of Health deemed hydraulic fracturing to be safe.
This week the Joint Landowners Coalition of New York, Inc. (JLCNY) announced that they are seeking landowner plaintiffs for a lawsuit against New York State. JLCNY announced in early February its plan to sue the state. According to JLCNY, the lawsuit “will focus on claims where the failure to grant [high-volume hydraulic fracturing] permits has deprived landowners of all economically viable uses of their real property or interfered with reasonable investment-backed expectations.” The Associated Press recently reported on the fear shared by many New York landowners that a “golden opportunity” has passed due to the state rulemaking delay.
The New York State Department of Environmental Conservation (DEC) missed a Wednesday, February 27th deadline to issue a final version of its proposed regulations for high-volume hydraulic fracturing, or fracking. DEC Commissioner Joe Martens reportedly stated in early February that the regulations will not be completed until the New York State Department of Health (DOH) concludes its review of potential health impacts. Also in early February, DOH Commissioner Nirav Shah signaled that more time was needed to complete the health study. Missing the February 27th deadline means that DEC will need to entertain another round of public comments if the agency re-proposes the regulations. More than 200,000 public comments were reportedly submitted in response to DEC’s proposal published on December 12, 2012.
The fate of New York’s fracking moratorium remains uncertain. According to the Huffington Post, if the rules proposed by the New York State Department of Environmental Conservation (DEC) are not finalized by February 27, 2013, the proposal will expire and create an opportunity for another round of public comment. Whether the new rules will be issued by the deadline remains uncertain. DEC Commissioner Joe Martens recently testified before state legislators that DEC “[does] not have a timetable” for completing the environmental impact review related to the regulations. Martens indicated that DEC’s completion of the rules is dependent upon a forthcoming report from the Department of Health. Martens added that completing the rules could take even longer if the Health report recommends modifications to the proposed rules. A coalition of New York state lawmakers has demanded that DEC provide an opportunity for the public to comment on the health aspects of the impact review. This could delay the completion of the rules even further. Based on a recent telephone poll of approximately 1,200 registered voters in New York, there is an even divide among New Yorkers on whether to lift the 4 ½ year-long moratorium.
The New York Times recently uncovered an eight-page New York Health Department analysis which concluded in early 2012 that fracking could be conducted in a safe manner in New York. The analysis states, “the Department expects that human chemical exposures during [high-volume hydraulic fracturing] operations will be prevented or reduced below levels of significant health concern.” The analysis also states that too many assumptions would need to be made and too many variables exist to project the probability of various hazards. The analysis is a summary of research conducted by the state and other parties, and concludes that fracking can be done safely within the regulatory system that the state has developed over the past several years.