Putting the sled before the reindeer: New York must not issue new fracking rules before completing health review

Earlier today, Governor Cuomo told a group of reporters that later this week the state will be filing for a 90-day extension to its initial Nov. 29 deadline for releasing proposed regulations for fracking in New York.  Because of an obscure provision of state law, this may mean that the state Department of Environmental Conservation intends to issue revised proposed fracking rules in the next couple of weeks.  [For procedure buffs who want to understand why, see note below.]

This would be a monumental error.

The governor has repeatedly sought to assure New Yorkers that he would let the state’s decision-making on fracking be governed by science. Most recently he vowed that he would not rush the newly-announced health review panel in its consideration of the serious risks posed by fracking. To issue revised rules now, when the health panel has only begun its review and the final environmental impact statement hasn’t yet been completed, would be the antithesis of the responsible governance Mr. Cuomo has been promising. The entire purpose of the health and environmental reviews is to inform strong, protective rules for how fracking would move forward if it is given the greenlight in the state. Issuing them prematurely undermines the reviews altogether.

It would also make the governor the Grinch who stole yet another Christmas from New Yorkers by delivering a set of unfinished revised rules – ones that don’t reflect the results of the on-going health and environmental reviews – and asking the public to weigh in on them over the holidays. This means fewer people are likely to be able to voice their concerns in time for the state to consider them as it finalizes the rules.

Luckily, there is a responsible, simple alternative. 

The state could simply let the deadline pass without filing an extension, which would allow them more than 90 days to complete the final rules.  This would ensure that they can consider the findings of the health panel and the final environmental review before making any decisions. This could mean incorporating measures to address serious identified health risks (unlike any rules that would come out now).  Or, it could mean concluding that the health and environmental risks of fracking are too great to move forward at all.  In that case, they wouldn’t need to ruin anyone’s holidays commenting on a set of revised rules that may turn out to be incomplete, or even unnecessary.

We’ve urged the state all along to take the time necessary to get this right. Rushing ahead with fracking now – with health and environmental reviews still pending – would be a foolish and irresponsible move on the Governor’s part.

[Note: The State Administrative Procedure Act requires that an agency issue revised regulations along with a notice of extension for revised rulemaking, and also requires a minimum 30-day public comment period, putting pressure on DEC to issue revised regulations early in the 90-day extension period.]