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Source: The Buffalo News

State’s fracking ban prompts joy, anger – and possible legal action

Governor expects legal challenges to Cabinet decision

BY JERRY ZREMSKI
NEWS WASHINGTON BUREAU CHIEF

Posted: December 18, 2014
Originally Published: December 17, 2014

New York officials Wednesday closed the door on fracking in the state while opening the door to celebration on the part of environmentalists as well as anger – and possible legal action – from supporters of the controversial natural gas drilling practice.

“The potential risks are too great,” Dr. Howard A. Zucker, the acting state health commissioner, said at a meeting of Gov. Andrew M. Cuomo’s Cabinet in Albany. “In fact, they are not even fully known.”

Zucker’s conclusion came at the end of a two-year state study on the health and environmental impacts of what’s technically known as hydraulic fracturing and it, in effect, makes permanent the state fracking moratorium that took effect six years ago.

Hearing about the move, environmentalists were overjoyed.

“With today’s decision, New Yorkers have received the greatest holiday gift we could ask for – clean air, clean water, and healthy communities,” said Adrienne Esposito, executive director of Citizens Campaign for the Environment. But Brad Gill, executive director of the Independent Oil and Gas Association of New York, said the state’s decision – while not surprising – will have grave economic impacts.

“While industry will find opportunity elsewhere, our hearts go out to the farmers and landowners in the Southern Tier whose livelihoods in New York State are in jeopardy,” Gill said.

For his part, Cuomo largely let his health and environmental commissioners do the talking on the fracking ban, while acknowledging the fight on the issue is not over.

“There’s going to be a ton of lawsuits” over the state’s decision, Cuomo acknowledged.

Hydraulic fracturing – where wells are drilled more than a mile deep, then turned horizontally into a hard shale that must be fractured with blasts of water, sand and chemicals – has opened up vast reserves of previously untapped natural gas. It has also produced an oil boom in North Dakota’s Bakken Shale. But fracking has left a trail of complaints about tainted well water, dirty air and torn-up roadways wherever wells have been fracked.

The Marcellus Shale covers territory from New York’s Southern Tier through Pennsylvania and into Maryland and West Virginia.

In a 15-minute presentation in which he discussed the research on fracking’s safety, Zucker proceeded from the technical to the personal.

Noting that the state spent 4,500 hours of labor on the study, Zucker said he was struck by the fact that the research to date does not conclusively prove that fracking does no harm.

“The evidence in the studies we reviewed raised public health concerns,” Zucker said. “There are many red flags because there are questions that remain unanswered from lack of scientific analysis.”

That being the case, Zucker said it would be wrong for the state to allow fracking.

“Would I live in a community with fracking based on the facts that I have now? Would I let my child play in a school field nearby?” Zucker asked. “After looking at the plethora of reports behind me ... my answer is no.”

Hearing that, Cuomo called Zucker’s talk “especially effective,” adding that if Zucker doesn’t want his children anywhere near fracking, no child should be anywhere near fracking.

At the same time, Cuomo – a famously hands-on governor – appeared to try to wash his hands of the fracking decision.

“This is self-executing between you two gentlemen? I have nothing to do with it?” Cuomo asked his health and environment commissioners, later adding: “I don’t think I even have a role here.”

Nevertheless, environmentalists and their political allies were quick to credit Cuomo for making New York the only gas-rich state that’s banned fracking.

Practically every major environmental group in the state issued statements lauding the governor, and Larysa Dyrszka of Concerned Health Professionals of New York said: “As hundreds of peer-reviewed papers have shown, drilling and fracking threaten to have very serious public health and environmental impacts on families and communities. Governor Cuomo put the science first and acted in the best interest of all New Yorkers and future generations.”

New York lawyer Zephyr Teachout, who challenged Cuomo in this year’s Democratic primary, also credited the governor for the decision.

“This is a historic moment, and one of the great environmental and health victories of the last decade,” said Teachout, who made her opposition to fracking a centerpiece of her campaign and who won several counties where fracking was an issue, though not the most gas-rich Southern Tier counties. “This moment shows how the power of a passionate, determined, educated public can change history.”

State Sen.-elect Marc C. Panepinto also credited the state for recognizing the dangers of fracking.

“The results of these multiyear studies confirm what the residents of Western New York have long suspected, that hydrofracking poses too great a threat to our environment and public health to be permitted in our state,” said Panepinto, a Democrat whose district straddles Buffalo, one of the dozens of New York communities that had previously passed laws aimed at stopping fracking.

On the other side of the issue, though, there was outrage.

“This is devastating news for the Southern Tier economy and its residents who are struggling every day,” said Rep. Tom Reed, a Corning Republican whose district includes several of New York’s most gas-rich counties. “This decision makes it even more difficult to replace the good jobs that have already left due to New York’s unfriendly business climate.”

Another Southern Tier lawmaker, Republican State Sen. Catharine M. Young of Olean, called the decision “a punch in the gut to the Southern Tier.”

“I am already hearing from numerous local officials who are deeply upset by the governor’s decision,” Young said.

Rep. Chris Collins, a Clarence Republican who had said he hoped to use his new position on the Energy and Commerce Committee to push fracking in New York, seemed angriest of all.

“Governor Cuomo has just denied the people of New York a tremendous economic opportunity in order to appease far left environmentalists for his own political gain,” Collins said. “The governor continues to hide behind Albany bureaucrats and controversial scientific studies to stand against hardworking New Yorkers who deserve the job opportunities and economic growth fracking has clearly produced in other states, including neighboring Pennsylvania.”

Of course, in America, anger often translates into legal action, and the oil and gas industry or landowners who had hoped to cash in on the gas reserves beneath their property could sue to try to overturn the state’s decision.

“We are very upset,” said Daniel Fitzsimmons, president of the Joint Landowners Coalition of New York, which had previously sued to try to force Cuomo to make a decision on the issue.

Saying his group plans to pursue other legal options, Fitzsimmons said, “This can’t be over.”

For his part, though, Cuomo said fracking “is a highly technical field that requires more information and less emotion.”

He said he is not an expert and would defer to the heads of state agencies.

“All things being equal, I will be bound by what the experts say,” Cuomo said.

Cuomo then turned the Cabinet meeting over to Joseph Martens, commissioner of the Department of Environmental Conservation.

Noting that local bans, legal action and the state’s environmental concerns would bar fracking from about 63 percent of New York’s share of the Marcellus Shale, Martens called the economic prospects for fracking in New York “uncertain at best.”

But it was Zucker’s presentation that put the final nail into the coffin for fracking in New York.

The state’s study found “many negative potential health effects,” Zucker said.

News Staff Reporter T.J. Pignataro contributed to this report. email: jzremski@buffnews.com