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As NY readies to ban fracking, lawyers prepare to sue


New York State Department of Environmental Conservation Commissioner Joe Martens testifies during a joint legislative budget hearing on the environment on Wednesday, Jan. 28, 2015, in Albany, N.Y.
(AP Photo/Mike Groll

ALBANY – For the past four months, the state Department of Environmental Conservation's staff — and attorneys — have been putting the finishing touches on a several-thousand-page document that will lay the groundwork for a statewide ban on large-scale hydraulic fracturing.

The agency has reason to be careful: The natural-gas industry and fracking supporters are looking for an opportunity to sue.

DEC Commissioner Joseph Martens says the report, known as the Supplemental Generic Environmental Impact Statement or SGEIS, is "literally at the printer." Its impending release will be closely scrutinized by advocates and opponents of shale-gas drilling, who have clashed in a seven-year battle that has long seemed destined to end in a courtroom.

"From a legal process point of view, we've been waiting for the final findings in order to determine what course of legal actions our companies might want to take," said Karen Moreau, executive director of the API New York State Petroleum Council, a gas-industry trade group. "This actually provides at least a timeline."

A fracking site in New Milford, Pennsylvania, is seen in this Jan. 17, 2013, photo. A report says a handful of New York landfills have taken in at least 460,000 tons of waste from Pennsylvania drilling sites since 2010. (Photo: AP)

The soon-to-be-released report's ultimate conclusion isn't a mystery.

On Dec. 17, Gov. Andrew Cuomo's administration announced it would prohibit high-volume fracking in New York "at this time" after Acting Health Commissioner Howard Zucker issued a report raising concern about its potential for negative impacts on human health.

The SGEIS, which has been in the works since 2008 and kept fracking on hold in the meantime, will lay out the DEC's findings. Once it's released, Martens must wait at least 10 days before he issues a legally binding "findings statement," which will lay out the agency's ultimate decision and its reasoning behind it.

The findings statement is what will be most scrutinized, since it will ultimately lay out the ban.

Speaking to reporters Wednesday, Martens said he was still working on the findings statement. He was careful not to discuss its contents before it's released, acknowledging his agency is putting it through plenty of legal scrutiny.

In a radio interview Friday, Martens said he remains confident in the decision to keep high-volume fracking out of New York.

"We obviously deliberated for a long time," Martens said on "The Capitol Pressroom," a public radio program. "There was an awful lot of activity and investigation into the impacts of high-volume hydraulic fracturing, and again, with the weight of the evidence it just suggested to us that we should be cautious in New York."

Of more than 30 states with shale gas or oil resources, New York is the only one to move toward a fracking ban.

Proponents of fracking — including various business, industry and landowner groups — said the process used to help extract natural gas from underground shale reserves could provide a much-needed economic boost to the long-struggling Southern Tier, which sits within the gas-rich Marcellus Shale formation.

Environmental and anti-fracking groups say it has the potential to harm the air, land, water and human health, as well as disrupt landscapes and roads.

Darren Suarez, director of government affairs for the state Business Council, said he's hoping to "wake up and have that moment where it's just a bad dream." His organization is a booster of fracking in New York, and he said some of its members will likely look into the feasibility of a lawsuit.

"It's something, I think, many of our members will examine — the potential for litigation, given that there really isn't precedent in using a (generic environmental impact statement) as a prohibitive document," Suarez said. "There could be significant potential for litigation."

Peter Iwanowicz, executive director of Environmental Advocates of New York who served as interim DEC commissioner in 2010, said he believes the state has been careful to make sure it has acted legally. State law lays out the decision-making process, and it gives Martens wide latitude.

"Listen, it's New York state — most things get litigated," Iwanowicz said. "I would be surprised if this wasn't one of those issues that got litigated. But they've spent a volume of time to get not only the process right but to ensure they are meeting legal standards and meeting environmental health standards."

Iwanowicz said he expects the findings statement will include a "strong statement" that the "public health would have been impacted had (fracking) gone ahead."

Some other environmental activists aren't so sure what the statement will include.

Walter Hang, an Ithaca-based organizer and owner of environmental database firm Toxics Targeting, has raised concern about how "permanent" the fracking ban will ultimately be.

He's called on the DEC to release the scope of the final SGEIS before it's formally proposed to give the public time to suggest changes.

"That's all we want to know: What is it that they're going to do?" Hang said. "And we want to know that when we have an opportunity to comment on that and change it if it's not proper. Allowing public comment without any requirement to revise the final SGEIS is not meaningful public participation."

In the radio interview Friday, Martens said the fracking ban — which applies only to fracking that uses more than 300,000 gallons of fluid — will be "permanent until the information changes." Studies that have been in the works for years may draw different conclusions when they're finally released, he said.

"I don't think there's any such thing in the environmental world as permanent," Martens said. "Information changes."