Approval of Fracking in New York Expected to Spark Legal Battles

As New York prepares to allow more widespread hydraulic fracturing (fracking) drilling, each side of the contentious debate is preparing for the next round of legal battles.

According to a report from North Country Public Radio (N.Y.) out of Albany, the expected post-Labor Day release of regulations governing fracking drilling on privately-leased and other public lands in the state will likely be met with some strong resistance, despite the practice essentially being backed by the state government.

To date, New York has operated under a moratorium on fracking drilling enacted by previous Gov. David Patterson. When Andrew Cuomo took over the office in Albany, he lifted that restriction but said he would not allow drilling permits in the state until its Dept. of Environmental Conservation completed a full review of the safety, drawbacks, and benefits of the process that explores underground shale beds for natural gas deposits.

New York is situated atop several shale beds, most notably the Marcellus shale formation that spans much of the Mid Atlantic region. So far, the legal battles over fracking in New York have largely been between local municipalities that have enacted their own bans in the absence of the state moratorium and natural gas and fracking companies that argued the localized bans were illegal. That round of arguments went in favor of those opposed to fracking drilling as New York’s highest court ruled the bans were not illegal.

To keep fracking limited in New York, an attorney with the advocacy group Earth Justice said opponents to drilling will have to focus on shortcomings in the expected regulations from the state’s Dept. of Conservation. Using a 1978 statute as the basis for their argument, opponents to fracking will likely say that the agency did not explore all the potential hazards to fracking drilling before releasing the regulations.

Though the state has reportedly spent close to four years refining the expected regulations and exploring those likely and potential pitfalls, the agency went into the process with the expectation of drilling being approved. The DoC said it believed that fracking could be done safely and effectively if it was properly regulated.

Close to a dozen towns in New York do not believe the state has their best interest in mind and got a jumpstart on drilling bans of their own. They believe, like many opponents of fracking drilling, that the industry’s unwillingness to fully disclose the most dangerous chemicals and other agents combined to create drilling fluid, and the use of hundreds of thousands of gallons of freshwater will put a strain on local renewable resources and put public health at risk.

Their evidence is aplenty, especially just to their south in Pennsylvania, where fracking drilling is being conducted against a facade of state regulation. There, thousands of new neighbors to fracking wells blame the drilling activity for myriad downgrades in their quality of life, including water and air pollution, a strain on local resources and infrastructure, and public health concerns like polluted air and public waterways. Fracking drilling has been blamed for contaminating private water wells, relegating some residents to find alternative sources for water.

New York is expected to release its regulations sometime after Labor Day but the state has already begun approving permits for proposed drilling sites. After then, as a representative of the Natural Resources Defense Council told the source’s reporter, opponents to fracking face “a heavy burden” fighting state regulations. While that group has had success in blocking fracking drilling in New York to date, he admits “that’s not an easy burden to prove.”

This entry was posted in Hydraulic Fracturing / Fracking and tagged . Bookmark the permalink.

© 2005-2019 Parker Waichman LLP ®. All Rights Reserved.