ALBANY Gov. Andrew Cuomo’s administration put six years of questions to rest when it announced its plan Wednesday to become the first state with shale-gas reserves to ban large-scale hydraulic fracturing.
With one major answer, however, comes another question: Now what?
The state’s move toward a ban has left both supporters and opponents of fracking charting their next steps, with the natural-gas industry and Southern Tier landowners weighing their legal options and anti-fracking advocates hoping to keep their extensive network of activists alive. But first state regulators have to tie up some legal loose ends.
The formal task of actually banning high-volume fracking rests with the state Department of Environmental Conservation, which since 2011 has been led by Commissioner Joe Martens. In order to do that, the DEC must first finalize a lengthy report that first put fracking on hold in July 2008.
That report, known as the Supplemental Generic Environmental Impact Statement, has gone through two drafts over the past six years, with both recommending fracking proceed with various safeguards in place. In order to put a ban in place, the DEC would have to issue a final version of the report that recommends not allowing fracking and wait 10 days before putting out a binding order.
“I have directed my staff to complete the (review) process early next year by publishing a final SGEIS,” Martens said Wednesday. “I will then issue a legally binding findings statement prohibiting (high-volume hydrofracking) at this time.”
The DEC’s next steps will be closely watched and analyzed by fracking advocates for any potential missteps. The process is governed by a state law known as the State Environmental Quality Review Act, which has numerous requirements that can trip up agencies legally but also grants broad decision-making authority.
Thomas West, an Albany-based oil-and-gas attorney who has led two previous lawsuits related to the state’s fracking review, said the potential for lawsuits over the ban will likely depend on how the state completes the process. He questioned how the state could dramatically change the report from its latest draft without putting it out for public comment — which Martens said won’t be needed.
But there’s another component to any potential lawsuits: money. And West isn’t convinced that the natural-gas industry will put up the funds for a challenge.
“I don’t know of anybody who cares enough about New York now to invest the money in that kind of legal fight,” West said. “We’ve been shut down for six years. Most of the industry has left. They’re not going to invest to try and turn around a political decision when they have plenty of other shale resources in other states.”
Karen Moreau, executive director of the New York State Petroleum Council, said her group is assessing its legal options, but said any action would likely have to wait until the DEC publishes its final report. Her group is the state affiliate of the American Petroleum Institute, a national oil-and-gas trade group.
“Our legal department is looking at it,” Moreau said. “I think it’s too early to say. They’re going to look at everything here.”
Landowners in the Southern Tier have long threatened a “takings” lawsuit if the state banned fracking, arguing that the government’s action would dramatically reduce the value of the land. The Fifth Amendment requires governments to compensate owners if it takes property for public use.
Opponents of fracking have reacted to the Cuomo administration’s decision with joy, even presenting him with a thank-you card on the street outside of his Manhattan office hours after the ban was announced.
Large swaths of anti-fracking activists grew throughout the state as the DEC’s review process stretched on, often trailing Cuomo at events and displaying their strength in numbers at his major speeches and fundraisers.
Now that those activists have gotten what they were seeking — a full ban — organizers said they are hoping to focus their network on promoting alternatives to fossil fuels. They are also hoping to use their model in New York to pressure other states to take similar steps.
A large rally being planned in Albany the same day as Cuomo’s State of the State address will still proceed, but will focus on thanking Cuomo and pushing for renewable energy, said Julia Walsh, a co-founder of anti-fracking group Frack Action.
“It’s going to be a celebration of our movement and a real beginning of our push and our movement to promote and rapidly expand renewable energy throughout our state,” Walsh said.