Attorney Deborah Goldberg of Earthjustice, and who represented the Town of Dryden, N.Y., against energy interests, said of any possible lawsuit against New York’s ban on fracking that, “My assessment of it is the state has done a good job of defending its decision.”
(Photo: AP)


ALBANY – When Gov. Andrew Cuomo's administration officially banned large-scale hydraulic fracturing Monday, it finally put an end to a seven-year review process that drew hundreds of thousands of public comments and sharply divided the general public.

For now.

The state Department of Environmental Conservation's action started a 120-day clock for fracking proponents to examine whether the ban has any legal holes; fracking opponents have lauded the ban. If a lawsuit isn't filed by Oct. 27, state law says the decision can no longer be challenged.

For years, both boosters and opponents of shale-gas drilling have operated under the belief that the state's ultimate decision on fracking would end up in the courts.

The next four months will prove whether the assumption becomes reality.

"I think when this is challenged -- and it will certainly be challenged -- the courts will see that we were deliberative, that we explored every aspect of hydraulic fracturing inside and out and certainly there was a progression of thought," outgoing DEC Commissioner Joe Martens told Gannett's Albany Bureau on Wednesday.

The DEC last Monday issued a 43-page "findings statement," which laid out the agency's rationale for implementing a statewide ban on fracking with more than 300,000 gallons of fluid. The document cites a number of uncertainties about the process' impact on human health and the environment while questioning whether it would be economically feasible in New York.

It was the culmination of a review process that launched in July 2008 when a series of natural-gas companies began targeting the state's portion of the gas-rich Marcellus Shale formation, which stretches across the Southern Tier.

Already, attorneys have been leafing through the document and assessing their legal options.

Brad Gill, executive director of the Independent Oil and Gas Association of New York, an industry trade group, said he's had discussions with a potential challenger as recently as Wednesday and the person is already moving toward a lawsuit. He declined to disclose further details.

"I am confident that there is at least one challenge that will be filed," Gill said. "It is from an entity that is not a member of IOGA of New York, but we are certainly cooperating with this person in his pursuit."

Should a challenge be filed, it will be in a court system that has routinely given broad deference to state agencies to make decisions and set rules.

And judges have regularly sided against gas companies in recent years as they sought to overturn local fracking bans and force the state to complete its review.

"I see a number of legal issues that I think are ripe for challenge," said Tom West, an Albany-based oil-and-gas attorney who unsuccessfully challenged a local ban in the town of Dryden, Tompkins County. "I don't know if there's any judges in this state who aren't afraid of Andrew Cuomo who would call it the way it should be called."

Attorneys for various environmental and anti-fracking groups, however, see no such legal holes.

And Martens, who will step down from his post later this month, called the document "imminently defensible."

"I would never predict precisely what a court will do," said Deborah Goldberg, managing attorney for Earthjustice, a non-profit that represented the town of Dryden. "Certainly, my assessment of it is the state has done a good job of defending its decision."

The DEC's fracking decision has the force of law, though it could be revisited by the agency with a new environmental review.

But that likely wouldn't happen without a change in the governor's office; Cuomo said in February he would "never" lift the ban, which was first promised by his administration in December.

Kate Sinding, senior attorney and deputy director of the Natural Resources Defense Council's New York program, said her group is "totally prepared" if a pro-fracking interest challenges the ban.

"I think (the DEC) was very, very careful in how they went about ensuring that they had a clearly explained rationale and solid backup in the record to support each conclusion they made," Sinding said. "At the end of the day, that's what a court is going to look at."

Proponents of fracking are well aware of the timeline they now face, according to Karen Moreau, executive director of API New York, a gas-industry trade group.

"We have several months to bring the challenge, and I know that our counsel's office has been looking at this and talking to our member companies about whether or not they're going to proceed with litigation," Moreau said. "It's going to be up to our companies as to whether or not API moves forward."