The truth about the June 1st fracking "deadline"

As summer quickly approaches, I’ve been getting a lot of questions from concerned New Yorkers and the media about what happens with fracking in New York on June 1 (or July 1). There’s a misconception floating around that one of those dates is when a moratorium on new fracking in the state is lifted.

The confusion is understandable, but incorrect. So as these dates draw near, I thought I should set the record straight – and explain where things do stand on proposed fracking in New York.

Bottom line: the fracking moratorium will NOT be lifted on June or July 1. But that doesn’t mean the threats don’t remain and it is critical to maintain the pressure on the governor not to rush the process forward.

So what does happen June 1? Or July 1? Absolutely nothing – you can breathe a sigh of relief (for now, anyway).

By law, the de facto moratorium on horizontal fracking in New York’s Marcellus and Utica Shale formations will remain in place until the state completes its review of the environmental risks associated with these risky new technologies.  And that is absolutely not going to happen by either June 1 or July 1 (I’ll explain more fully why not below).

However, I should note that I say “de facto” moratorium for a reason. It’s so-called because, in theory, a company could prepare its own environmental impact statement in support of an application to drill, but none has opted to take this expensive and uncertain route. This caveat prevents it from being a full, official moratorium – despite the fact that it has the same practical effect.

So why all the confusion?

It dates back to Governor Paterson.  Last December, the outgoing governor vetoed a highly popular bill (passed in both houses with strong bipartisan support) that would have imposed a formal moratorium on new fracking until May of this year. In order to avoid a public backlash, he put out a press release that said while he was vetoing the popular measure, he was issuing an executive order to create an even longer moratorium – one that would last until July 1, 2011. That’s the initial story that made it into press, and even my own blog post at the time.

But we soon found out that’s not really what the executive order did at all, despite what the state’s press release said. But by the time that was clear – the story was out there. And it persists today.

In reality, Paterson’s executive order – which, to be clear, was largely positive –directed his Department of Environmental Conservation to issue a new draft environmental review document before moving forward.  In so doing, he effectively acknowledged that the more than 13,000 public comments received on the initial, deeply flawed draft from the fall of 2009 raised significant issues that required new analysis – and a new public review and comment period.  While this was good, regrettably, he indicated that this new draft document should be issued “on or about June 1, 2011” (month before Paterson suggested the moratorium would expire) – a ridiculously short time frame to sufficiently address the many critical problems with the original draft.

Where do things actually stand right now in New York State?

When he assumed office, Governor Cuomo extended Paterson’s executive order.  Since that time, DEC has been continuing its evaluation so it can issue the new draft environmental review. That involves reviewing the thousands of public comments submitted almost a year-and-a-half ago and determining what additional studies need to be completed. 

That, quite simply, is not going to happen in the next week.  Nor is it going to happen in the next month, as it shouldn’t.  In fact, we don’t know how long it will take.  And despite their repeated public statements that they aim to get the new draft out “this summer,” my bet is even DEC itself doesn’t know how long it will realistically take them to churn out a competent new document.  The agency was heavily gutted by staffing and budgetary cuts in the last administration, and their new leadership is still, well, new.  We have real optimism that DEC Commissioner Joe Martens and his staff intend to conduct a thorough and proper evaluation of the environmental and public health risks. But that’s going to take some real time.

And they should take all the time they need to get it right – the safe drinking water, clean air and healthy environments for millions of New Yorkers across the state are on the line.

Furthermore, even after the new draft is released, DEC is going to have to provide a new public comment and review period (which should be at least as long as the last one, 90 days). After that, the agency is legally required to do exactly what it’s doing right now – evaluate, and respond to, every substantive comment received on the new draft before issuing a final environmental review document and completing the process.

What all this means is that we are many months away from the fracking moratorium being lifted – and that’s a good thing. It should remain in place unless and until the state shows that fracking can move forward safely here, which will take more time and careful review to determine.

That said, there is still a real risk that the state will cave to pressure from big oil and gas corporations and rush the process, putting New York’s safe drinking water supply, air quality and communities in jeopardy. New York has an opportunity other states didn’t get – to squander it would be foolish. The state can and must show the rest of the nation (and even world) how to protect the environment and its residents’ health BEFORE any fracking is allowed to proceed.

In the meantime, the state legislature is looking at a couple of important related issues. With about a month remaining in this session, legislators can pass two pieces of critical legislation that would protect against some of the big threats current, and any potential new, fracking presents to the state. The first bill removes an egregious loophole that allows toxic oil and gas wastes to escape treatment as hazardous waste (tell your legislators to take action here). The second would protect against oil and gas corporations harming the health of our rivers and streams  by controlling how much water they use in fracking.

Tell Governor Cuomo to protect our drinking water from fracking.

As the state considers proposed fracking, Governor Cuomo desperately needs to hear three things from the public:

(1)    The state should take all the time it needs to do the assessment right.  This means, among many other things, giving DEC all the time and resources necessary for a full cumulative analysis of environmental and health impacts. 

(2)    If (and only if) DEC determines new fracking can proceed safely, the state must then propose new comprehensive, formal regulations, rather than relying – as is currently envisioned – on case-by-case permitting decisions.

(3)    If (and only if) these two steps happen, the state must limit any new fracking to avoid turning upstate’s residential, agricultural and forested places into industrial zones, and to ensure it doesn’t undercut the ultimate solution, which is an energy future driven by efficiency and renewables, not finite fossil fuels.

So you can mark the first of the next two months in whatever way you like (maybe it will stop raining long enough for a barbecue or dip in the lake), but you won’t be marking it by ruing the end of the fracking moratorium.