Government leaders take note: NY's fracking ban is consistent with the evidence & public opinion

We all enjoyed some pre-Christmas euphoria over Governor Cuomo's historic decision to ban fracking in the State of New York. And we deserved the merriment, given the governor's noble adherence to his oft-articulated, and correct, principle: Let science, not politics, guide his decision. We argued, he listened, he decided, and we rejoiced.

The Governor's groundbreaking decision followed on an equally groundbreaking decision by the State Court of Appeals - New York's highest court, and one of the most prestigious appellate benches in the nation - last summer. In June, the court ruled that municipalities had the right to use their zoning codes to ban fracking, and state law could not preempt that right. NRDC's Community Fracking Defense Project had filed an amicus curiae (friend of the court) brief, supporting the upstate towns of Dryden and Middlefield, which were defending their local bans on fracking against legal attack from the oil and gas industry, and we were thrilled when the Court of Appeals saw it our way.

So, New York State government is now firmly on the side of local and statewide bans. And the people of the state are behind them. A recent Quinnipiac poll found that the majority of New Yorkers support the ban, upstate and downstate, and across party lines. This backs up an NRDC poll from last year, i which found that nearly 8 out of 10 New Yorkers supported the de facto moratorium that was in place before Governor Cuomo's momentous decision. That same poll also showed that 56 percent of respondents opposed fracking, and only 35 percent supported it.

It seems the rest of the country is heading in that direction as well. Nationally, a Pew Research Center poll last year showed that, between March 2013 and November 2014, opposition to increased fracking grew significantly across most regions, and now substantially exceeds support nationwide.

While polling is promising and these decisions were influential, unfortunately they do not constitute game, set, match in the national fracking debate. Many other communities around the country are still fighting to follow in the footsteps of these New York victories and assert their right to determine their own fracking fate as well. For example, Longmont -a northern Colorado city that decided to ban fracking--now faces huge legal costs to defend the ban against pushback by the industry. In Longmont and elsewhere, the drillers are making the argument that they made in New York: that state agencies, not municipalities, have the right to set the rules for oil and gas. The City of Denton, Texas, also just passed a historic ballot measure banning fracking in the heart of oil and gas country that is now under legal fire. We're doing our part to defend communities around the country in legal battles like this, but the frack pack has plenty of money to spend on lawsuits--and municipalities and nonprofits, not so much.

While the extent of local home rule is admittedly a function of each state's unique combination of constitutional, statutory and/or case law, NRDC's Community Fracking Defense Project is committed to urging courts in states across the country to take a similarly broad view to that adopted by the New York Court of Appeals. Communities all across the country should have the same right to self-determination about the kinds of character and land uses they wish to accommodate.

Unfortunately, Interior Secretary Sally Jewell isn't helping. She recently dismissed local and regional bans on fracking, telling KQED, a Northern California public radio station: "I would say that is the wrong way to go I think it's going to be very difficult for industry to figure out what the rules are if different counties have different rules." This is an argument we often hear from industry as a means of squashing local fights. But while the Interior Secretary might agree, she should be wary of the fact that industry is arguing against federal rules at the same time, saying they would not be appropriate either because they do not allow for unique local conditions. Clearly they can't have it both ways--and we need both state and federal leaders to crack down on this out of control industry, not losing the reins.

Sec. Jewell has also trivialized mounting independent scientific research indicating fracking is linked to serious risks to public health, stating: "I think that localized efforts or statewide efforts in many cases don't understand the science behind it and I think there needs to be more science." A recent NRDC report on the science to-date regarding health risks from fracking-related air pollution alone--including things like birth defects and cancer--shows that is terribly misguided. New York State, as well spent years looking carefully at the science. Scientists there also expressed concern about the health risks and concluded that there are still too many uncertainties and knowledge gaps to conclude that the risks of fracking can be adequately managed, or even fully understood. This was carefully laid out in Health Commissioner Zucker's report, which ultimately led to Governor Cuomo's decision last month.

The Interior Secretary's opinion matters. Her department oversees the Bureau of Land Management, which is expected to issue rules governing fracking on public lands any day now. Initial drafts have been woefully inadequate to protect public health or the environment. And millions of people rely on the nation's public lands for their drinking water supplies--from thousands of private wells, to large municipal supplies for cities like Denver. NRDC has been urging the Bureau of Land Management to do what New York did and include comprehensive health impact assessments when it conducts environmental review of new federal oil and gas development. But, unfortunately, the federal agency has yet to follow New York's lead. And Sec. Jewell's recent comments are not encouraging.

In this new year, the industry is playing the same old game: attempting to expand fracking by using bluster and multiple lawsuits against municipalities instead of letting the facts lead the policy. We draw strength and encouragement from Governor Cuomo's decision, but the signs are clear that we can't afford to let down our guard for a minute. We'll be calling on the federal government to stand up for people, not the fracking industry. And we'll continue standing up with the growing number of communities across the country that are saying they deserve the right to defend their own quality of life and to protect their families' health.

About the Authors

Kate Sinding

Senior Adviser to the President

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