New York’s Moratorium on Hydraulic Fracturing Likely to Continue

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Regulators expect to extend ban on controversial natural gas extraction pending further health study.

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A state-wide moratorium on the use of hydraulic fracturing to extract natural gas is likely to extend for at least another year. This prediction is based on a recent announcement by Emily DeSantis, spokesperson for New York’s Department of Environmental Conservation (DEC), that the agency expects to miss its November deadline for finalizing amendments to the state’s oil and gas and safe drinking water regulations.

Once finalized, DEC’s amendments may allow for the use of horizontal high volume hydraulic fracturing, or “fracking,” to extract natural gas trapped within layers of solid rock , or “shale,” located miles underground. Allowing this technique would be a first within the state. However, if the DEC fails to issue a new rule by the November 29, 2012, deadline it will be required to initiate an additional round of public comments, extending the deadline for a final rule by one year.

Fracking has become heavily used outside of New York, creating a “boom industry” that has injected revenue and employment into rural communities. However, some anecdotal evidence as well as overall uncertainty about the environmental and health risks posed by hydraulic fracturing has also led to calls for additional regulations and oversight. These concerns focus primarily on potential drinking water contamination by the migration of naturally-occurring methane gas or by chemicals present in the “fracking fluid” that is injected underground during the hydraulic fracturing process.

New York has approached this question with caution, declining to issue permits for fracking operations until the conclusion of a rulemaking process that can be traced back to 2008. State regulators have emphasized that they will not issue permits that open New York up to fracking until a thorough analysis of the potential public health effects of the technique have been considered.

DEC Commissioner Joseph Martens reaffirmed this commitment only days before the agency announced its expected delay, stating that a final decision about fracking would not be made until New York State Health Commissioner Nirav Shah completes a “health impact review.” Martens indicated that the additional evaluation would be undertaken in light of public health concerns raised within the over 80,000 public comments submitted in response to the proposed rule.

As the debate surrounding fracking lumbers on at the state level with no clear resolution in sight, individual municipalities within New York have begun to take prophylactic measures to limit or postpone the use of fracking in the event that the state-wide ban is lifted. Over 30 municipalities in upstate New York have banned fracking, while 80 more have issued temporary moratoriums.

Local bans on fracking are not without controversy, drawing the attention of residents and outsiders from the natural gas industry and environmental organizations. Municipalities’ ability to limit hydraulic fracturing has been extensively challenged by representatives of the natural gas industry in other states, including Pennsylvania, West Virginia, and Ohio. The industry claims that the “patchwork” system of regulations that result from these local bans impedes what they allege is a safe and productive industry.

Several local restrictions have already been challenged in New York, most recently in Binghamton, where the state Supreme Court overturned a de facto two-year moratorium, holding that Binghamton had failed to take the procedural steps necessary to enact such a restriction.

Even if DEC were to exceed its own expectations and manage to finalize a new rule by November 29th, the immediate effects of a finalized rule permitting are unclear. The increased use of fracking outside of New York has increased the nation’s supply of natural gas, driving prices down. Even if the practice is legalized in New York, natural gas companies may lack the economic incentive to invest in new fracking operations within the state in the near future.