Just over a month after his re-election, Governor Cuomo has been making waves on fracking—telling reporters in recent days that he will make a major decision before the end of the year.
With a moratorium in place since before he came into office, the Governor has long-vowed to let sound science be his guide on fracking. This hasn’t stopped the oil and gas industry from keeping the pressure on. But recent polling shows that the people of the state have appreciated his steadfastness—with nearly 80 percent of New Yorkers support an ongoing moratorium (including majorities from both political parties, and in the counties most likely to be fracked).
A new report out today from NRDC continues to pile on the reasons why now is not the time for the Governor to cave to industry pressure.
Fracking Fumes offers the most comprehensive analysis of scientific studies to-date on the health impacts from fracking related air pollution. It finds that a growing body of scientific evidence shows that people both near and far from oil and gas drilling are exposed to fracking-related air pollution that can cause at least five major types of health impacts. This includes respiratory problems, birth defects, blood disorders, cancer and nervous system problems.
Not surprisingly, the risks are highest for workers and those living in close proximity to wells. However, the report also shows that the health threats don’t stop there—but extend to entire regions where there are high concentrations of drilling activity. And, of course, it includes global climate impacts that pose a wide range of public health threats. This infographic illustrates the geographic scale of the health impacts well:
This is just one more reason why we have been calling on the Governor to extend the fracking moratorium for a minimum of three to five years. According to the Concerned Health Professionals of New York (CHPNY), a moratorium of at least that length is necessary to allow the science to continue to mature, such that we can better understand the full measure of health risks. Earlier this week, CHPNY released its own updated, expanded Compendium highlighting the growing body of scientific studies that increasingly demonstrate fracking’s real risks.
Some have speculated, however, that there may be an in-between solution, in which the Governor ostensibly leaves the decision on fracking up to town boards. It’s complex—and I explain the legal ins and outs in a moment—but the upshot is that it would be a cop-out that could open the state up to a fracking free-for-all via the courts.
Here’s the more complicated background: The theory is that the Governor might rely on the June decisions by New York’s highest court upholding local governments’ rights to impose bans on fracking to justify holding off on fracking at this time. More specifically, the argument goes that, following those court decisions, any town that might want to move ahead with fracking would need to affirmatively zone fracking in as a permitted use within its borders. And since this would entail a lengthy legal and procedural process, including full environmental review, there are so few towns in which fracking could currently be permitted that at the same time the state would decide it would not be worthwhile or economical to proceed with a full regulatory fracking program. So, some speculate, the Governor will attempt to split the baby by finalizing the on-going environmental and health review process, but still holding off on fracking for the time being to see what local town boards decide to do.
But that does not mean fracking won’t move forward. There are a number of serious fallacies in this hypothesis. First, there are a substantial number of towns, especially in the Southern Tier, that do not have local zoning. Therefore, the home rule cases have zero impact on the potential for fracking in those towns, i.e., fracking could proceed without needing to go through any new process. Second, even in towns with zoning, there are likely many in which fracking is already permitted either as-of-right or as a special use; hence, no rezoning would be necessary for them to proceed. Third, it is not at all clear that accomplishing a rezoning where necessary would present a significant obstacle. Where the town board has the votes, and assuming the final environmental review looks similar to the most recent draft, as an environmental lawyer I could craft an argument that a rezoning could be rather readily accomplished. (Not to mention, as a new report from NYPIRG today shows, many local municipalities—particularly those in the Southern Tier—aren't suited to make determinations about fracking, suffering from conflicts of interest, weak ethics laws, and susceptibility to undue influence from the powerful oil and gas industry.)
This is all to say that any decision to hold off fracking on this basis would render the state susceptible to a legal challenge by the industry, which has shown no qualms about (thankfully, unsuccessfully) suing over the current moratorium. And, given that the environmental review would be complete, a successful lawsuit could mean open season for fracking in New York.
In short: It is not a stretch for one to conclude that a decision by the Governor to follow this path is no more than a cynical ploy to let the courts – and some town boards – compel him to frack.
Most significantly, though, in order to do anything other than extend the moratorium, the Governor would need to first conclude the ongoing environmental and health review process underway in the state. Doing so would fly in the face of everything that science is telling us – which is that the more we learn, the more reason there is for concern. It is for this very reason that an extension of the moratorium is, by comparison to the in-between solution outlined above, the only one on solid legal footing.
If, as he has continuously promised us, science truly is the Governor’s guide on fracking, this should make his forthcoming decision easy. The only answer is extending the moratorium. And the people of New York are behind him.