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New York Governor Floats Idea to Ban Hydraulic Fracturing in Majority of New York Counties

by James A. Pardo and Brandon H. Barnes

New York Governor Andrew Cuomo is reportedly considering a plan that would ban hydraulic fracturing  (fracing) in all of New York with the exception of five counties along the Pennsylvania border:  Broome, Chemung, Chenango, Steuben and Tioga.  Even within those five counties, however, fracing would be strictly limited under the Governor’s scheme.  Specifically, fracing permits would only be issued for wells located in communities that had not acted locally to prohibit the process – in other words, towns within the five counties still could exercise "home rule" to ban fracing by zoning amendment, or otherwise.  Cuomo also would ban fracing in Catskill Park, near any drinking water aquifer, in any nationally-designated historic districts and initially would limit it to the “deepest” areas of the Marcellus Shale.

Governor Cuomo has been under intense pressure from both sides in the fracing debate, and his idea – which an anonymous New York State Department of Environmental Conservation (NYSDEC) official deliberately leaked to the New York Times – was an attempt to take the temperature of both sides to a possible compromise.  It appears that Cuomo’s team sought to please environmentalists by banning fracing in most of the Empire State; assuage industry stakeholders by permitting fracing in certain counties with significant Marcellus plays and where public opinion appears to be leaning in favor of natural gas development; and build support with local officials from around the state by implicitly reaffirming "home rule" rights to ban fracing.  Initial reaction to this "trial balloon" idea was largely negative from the anti- fracing side – which has been trying to build momentum for a full statewide ban – but recently has drifted towards tepid support as fracing foes may see it as their best chance to stop fracing in most of New York.  Stakeholder response has been fairly neutral, with some companies expressing optimism because the plan allows fracing at all – an indicator of just how tight the debate has become in New York right now. 

Cuomo’s plan would give everything to nobody, and something to everybody – providing considerable political cover to both the Governor and NYSDEC.  For this reason alone, it is a plan that may have the best chance of passing through the regulatory, legislative, legal and public opinion gauntlet that currently exists for fracing in New York.

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Updates on Hydraulic Fracturing in Pennsylvania and New York

by James A. Pardo and Brandon H. Barnes

Pennsylvania Towns Challenge State Legislation Preempting Local Bans on Hydraulic Fracturing

Last month, the Pennsylvania Legislature passed HB 1950, putting into place comprehensive new rules for hydraulic fracturing activity in the state.  Among the new rules are strict limits (akin to those proposed in New York) on where new wells can be located.  Citing the need for statewide uniformity to ensure the most efficient development of oil and gas resources, and consistent environmental protections for all residents, the legislature also declared that all local ordinances — including local zoning rules — must allow for reasonable development of oil and gas resources consistent with the new legislation.  In short, HB 1950 preempts all stricter local zoning ordinances, including any ordinances that might seek to totally ban hydraulic fracturing.

The preemption provisions of HB 1950 quickly came under fire from environmental and community groups.  The controversy escalated last week when seven Pennsylvania towns – joined by Delaware Riverkeeper – filed suit challenging the provisions as an unconstitutional stripping of the towns’ power to zone and a denial of their ability to carry out their constitutional obligation to protect public natural resources.  That case, Robinson Township et al. v. Commonwealth of Pennsylvania et al. (No. 284-MD-2012) is pending in the Commonwealth Court in Harrisburg.

The use of local zoning ordinances to ban hydraulic fracturing is contentious in neighboring New York – where two such ordinances recently withstood legal challenge and are now headed for appellate court review.  How the challenges are resolved is important since local zoning ordinances have the potential to create a difficult "patchwork quilt" of regulations with which oil and gas explorers and developers would have to comply.  

Coalition to Oppose Hydraulic Fracturing in Empire State

An eclectic mix of organizations are coordinating and working together on hydraulic fracturing (fracing), last week several groups announced the formation of a coalition — "New Yorkers Against Fracking" — to organize their efforts in the Empire State.  The coalition is led by several anti-fracing groups historically active in New York:  Food & Water Watch; Water Defense; Catskill Mountainkeeper; and United for Action (David Braun).  The coalition has received initial funding from Sandra Steingraber, the biologist and environmental writer who recently won the Heinz Award for her work on how chemical contaminants in air, water and food endanger human health.  Steingraber is donating her $100,000 prize to the group. 

The coaltion’s stated goal is to achieve an outright ban on fracing, suggesting that it will not seek to work with New York State Department of Environmental Conservation (NYSDEC) to bolster the fracing rules that the agency expects to finalize this year.  This is an uphill battle in New York, where all indications are that Governor Cuomo and NYSDEC intend to allow fracing, albeit subject to the nation’s strictest regulations.  Not surprisingly, the more mainstream "national" NGOs (e.g., Sierra Club, Natural Resources Defense Council) — which largely have resisted pursuing unlikely bans [...]

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