* The “final” decision not to allow hydrofracking in NYS could be undone in the future. *
The New York State Department of Environmental Conservation (DEC) announced on May 13, 2015 that it has completed the “Final Supplemental Generic Environmental Impact Statement” (Final SGEIS) on its proposal to establish a permitting program for horizontal drilling and high-volume hydraulic fracturing (hydrofracking). All that remains is the perfunctory issuance by the DEC of its Findings Statement pursuant to the State Environmental Quality Review Act (SEQRA).
The good news is that the DEC – concurring with the advice it received in December 2014 from the State’s Department of Health (DOH) – has reached the conclusion that hydrofracking should not proceed in New York State. The two State agencies conclude that high-volume hydraulic fracturing may pose a serious threat to public health and the environment in a variety of ways:
1) air impacts that could affect respiratory health due to increased levels of particulate matter, diesel exhaust, or volatile organic chemicals;
2) climate change impacts due to methane and other volatile organic chemical releases to the atmosphere ;
3) drinking water impacts from underground migration of methane and/or fracturing fluid chemicals associated with faulty well construction or seismic activity;
4) surface spills potentially resulting in soil, groundwater, and surface water contamination;
5) surface water contamination resulting from inadequate wastewater treatment;
6) earthquakes and creation of fissures induced during the hydraulic fracturing stage; and
7) community character impacts such as increased vehicle traffic, road damage, noise, odor complaints, and increased local demand for housing and medical care.
The Final SGEIS validates the anti-fracking campaign that reverberated across New York State, and is rightfully a source of pride for “fractivists” and the legitimate scientific community. But, it must not lull anyone into a sense of complacency.
In a precarious world where SEQRA’s environmental review process can be manipulated by government officials, and politics is dominated by money, the dictionary definition of “final” – “not to be altered or undone” – may not apply. For the following reasons, environmentalists and ordinary citizens who care deeply about the protection of our natural resources and the public’s health must remain vigilant:
First, the Final SGEIS repeatedly references the fact that the science underlying high-volume hydro-fracking’s impacts is still “developing,” and that “significant uncertainty remains” regarding “the level of risk to public health and the environment that would result from permitting high-volume hydraulic fracturing in New York, and regarding the degree of effectiveness of proposed mitigation measures.” As expressed by the DEC:
… [T]here is currently insufficient scientific information to conclude that [high-volume hydraulic fracturing] can be undertaken without posing unreasonable risk to public health, and to determine what mitigation measures provide a level of assurance that potential risks have been satisfactorily minimized. [Final SGEIS, Executive Summary, p. 24]
Implied in the Final SGEIS’s rationale is the reverse side of the coin: If and when sufficient scientific information becomes available demonstrating that hydrofracking can be undertaken without posing an unreasonable risk to public health and the environment, permission to engage in such activity may be granted.
Second, as reflected by the multi-year review process that has now reached its completion, SEQRA expressly envisions that a lead agency – in this case, DEC – may “supplement” an environmental impact statement (EIS) in a number of circumstances: if changes are proposed for a project; when newly discovered information is available; or, where there is a change in circumstances related to the project. [See 6 NYCRR 617.9(a)(7).] Given the availability of the Supplemental EIS process, an administration determined to allow hydrofracking in New York State could easily conclude that new scientific information, or changes in hydrofracking technology, justify initiation of the Supplemental EIS process recognized in the SEQRA regulations.
Third, if the DEC – following preparation of a Supplemental EIS – expresses the conclusion that it would be reasonably safe to allow hydrofracking in New York State, such a determination would be very difficult to overturn in court. The factual findings and conclusions relied upon by the agency would be given substantial deference by the judiciary. And, the courts would refrain from acting as a “referee” and choosing which scientific studies are more reliable than others. That determination would be left to the lead agency, DEC.
So the anti-fracking community should rejoice in a well-deserved victory, but never take the “final” decision for granted.
With All Due Respect,