NYS Takes A Step Back from Fracking Precipice

New York's Department of Environmental Conservation has sent word that the state's controversial proposal for fracking in the Marcellus Shale will have to undergo a new rule-making process as a result of the Cuomo Administration's recent decision to undertake an in-depth review of the proposal's potential impacts on public health.

Late yesterday afternoon, in response to a question posed by Shale Gas Review blogger Tom Wilber, DEC's Director of Public Information, Emily DeSantis, announced: "DEC has said no regulations or final decision will be issued until the completion of [State Health Commissioner] Dr. Shah's review; should high-volume hydraulic fracturing move forward, it is expected that a new rule-making process would be undertaken."   Undertaking a new rule-making process after the health analysis is concluded will likely push any final action to advance (or reject) fracking in New York back well into 2013. And the new rule-making proceeding will also have to be subject to public comment.

(Under the State Administrative Procedure Act, final rules must be published with 365 days of their proposal or the most recent public hearing on those rules.  The last hearing on the DEC's fracking rule-making proposal was held on November 30, 3011.  And even with extensions provided by law, the State has apparently concluded that it will be unable to complete its current health assessment and finalize the rule-making proceeding within the existing timeframe.)

As my colleague, Kate Sinding, has stated: "The Administration's latest decision is encouraging in that it will provide ample time for the state agencies to solicit the input of independent health experts, as well as concerned stakeholders, both of which are crucial if the state is going to complete a proper assessment of fracking's potential health risks to New Yorkers."

Of course, yesterday's announcement does not permanently bolt the door to fracking in New York.  But, by removing the immediate time pressure, it drops in another safety gate.

The Cuomo Administration's decision to take the time needed for the health review is one that is sensible from both policy and political perspectives: the price of natural gas is at historic lows; an unhurried, independent health analysis could help insulate the Administration from legal challenges to whatever final fracking decision it makes; and the whole issue of fracking continues to generate intense opposition from many potentially affected communities.  

Having secured the extra time needed to complete a legitimate health study, State Health Commissioner Shah must now name a truly independent set of physicians and medical experts, and solicit public input, to assist him in this important new analysis.