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DEC Sets Fracking Rules. Are Lawsuits Next?

by Nicholas Kusnetz,

The NYS Department of Environmental Conservation issued  proposed rules to regulate hydrofracking in New York State last week. Fracking is a mining process releases trapped natural gas from underground rock formations. The new guidelines will create a frack-free zone around the upstate watersheds of NYC and Syracuse set rules to protect underground aquifers throughout the state.

NYS Senator David Carlucci (D-Rockland) wrote to the DEC last week to question the partial ban. “If the threat of potential pollution is too great to subject the New York City and Syracuse watersheds too, why would it then be acceptable to subject water sources in the rest of the state to the same potential contamination?” Carlucci also expressed concern about the cost and effectiveness regulation as the DEC has lost a quarter of its staff since 1990. Hydrofracking is not currently permitted in NYS and will continue to be banned at least until the DEC completes a full review sometime in 2012.

The following story from ProPublica suggests that the oil and gas industry will sue municipalities that choose to ban hydrofracking on their own as Buffalo did so earlier  this year.

New York environmental officials have released a blueprint for regulations that eventually would allow hydraulic fracturing to begin in most parts of the state’€”except for key watersheds and aquifers and on state land.

Drilling is still months away at the earliest, but talk has already begun about legal challenges from energy companies and landowners in the areas where high-volume hydraulic fracturing, or fracking, would be prohibited.

‘€œI think some of the bans and setbacks are legally questionable,’€ said Tom West, an oil and gas attorney in Albany, N.Y., who represents a number of drilling companies in the state. ‘€œWhen they start putting areas off limits to drilling or production that raises a significant legal issue.’€

West said the ban would deprive landowners and leaseholders of the right to develop their property.

Energy companies may be more likely to challenge the growing number of local bans. Over the last year, several New York towns have either issued local fracking bans [1] or begun the process of doing so [2].

State law says only the Department of Environmental Conservation can regulate drilling. But towns are allowed to zone their own land, and many have been using zoning laws to try to keep fracking outside municipal limits.

Ithaca’s town supervisor Herb Engman said streams and a lake within town limits provide drinking water to more than 90,000 people in the area. He said the water deserves the same protections as those proposed for the watersheds for New York City and Syracuse, where drilling would be banned under the state’s blueprint.

‘€œI don’t see the difference between the concerns for their watershed and the watershed for the people of Ithaca,’€ he said. ‘€œWe need to keep our waterways pure.’€

Engman said the town’s zoning laws prohibit any industrial practice that is not explicitly allowed, including gas drilling. He said 12 percent of the town is currently leased by drilling companies, but that he and the town’s attorney are confident that courts would uphold their zoning rules if the town is sued.

On Wednesday, DEC Commissioner Joseph Martens told a local newspaper that the issue is likely to end up in court [3].

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West said zoning is not an appropriate way to limit drilling and that it’s only a matter of time before a lawsuit is brought against one of these towns. But Michelle Kennedy, a lawyer who represents several towns that have zoned against fracking, said state courts have upheld local efforts to prohibit mining. Judges would likely look to those rulings as the closest precedent in a fracking case, she said.

‘€œThe towns have prevailed when they’ve tried to apply their land-use laws,’€ she said.

Towns have been moving to ban drilling or fracking across the country. As we reported in January, similar uncertainties were raised in Pennsylvania as well [4]. One energy company recently sued a West Virginia town [5] that banned horizontal drilling within a mile of town limits.

It’s only a matter of time before the same happens in New York, said Kate Sinding, senior attorney for the Natural Resources Defense Council in New York City.

‘€œThere are very smart, experienced lawyers who have made the case both ways,’€ she said. ‘€œMost folks agree there’s enough ambiguity that it’s going to be up to the courts to decide.’€

The DEC said a 60-day public comment period on the state proposal will begin in August. The department will then need to review and reply to those comments before incorporating any changes they see fit into the final rules. In a news conference last week, Martens said it’s unlikely that the process would be complete this year.

Nicholas Kusnetz is a staff writer at He has previously written for The Nation, Miller-McCune, The New York Times. Kusnetz is a graduate of UC Berkeley’s Graduate School of Journalism. This story was originally published on on 7/8/2011.

See also:

Photo: Hydrofracking site. Credit: Josh Garrett,

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