Legal challenges expected as state moves toward hydrofracking

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ALBANY — During the three-year debate over the merits of hydraulic fracturing for natural gas in New York, advocates and opponents haven’t been able to agree on much of anything.

Nearly everyone involved, however, will concede this: As the state moves closer to allowing high-volume hydrofracking in the Marcellus Shale, there likely will be lawsuits.

Some groups have already identified issues with the DEC recommendations they believe could be ripe for a challenge, saying the state Department of Environmental Conservation may be preparing to move forward with drilling before legal regulations are officially in place.

“We expect legal challenges,” Joseph Martens, DEC commissioner, said Wednesday. “Obviously, we’re being as careful as we can to make sure that we’re as clear as we can possibly be on all of the points so there’s minimal success of legal challenges.”

The DEC on Friday issued a full, 1,095-page draft of its ongoing environmental review of high-volume fracking, one week after publishing a shorter preliminary version. The technique involves the injection of water, sand and chemicals into gas-rich shale formations — such as the Marcellus Shale below the Southern Tier and parts of the Hudson Valley — to break rock and release natural gas.

The report, which will be updated and put up for public comment in August, includes a set of recommended guidelines for the agency to follow when it begins to issue permits for the gas-drilling technique. Permitting won’t begin, however, until the state finalizes the review, which is expected sometime next year.

In particular, some environmental groups have taken issue with the agency deciding to grant permits as soon as its environmental review is complete.

The recommendations in the DEC report aren’t legally binding, though Martens said his department wouldn’t grant a permit unless the gas company complies with the terms included in the final version.

The agency will move to ratify its recommendations into its oil and gas rules, an administrative process that would give them the same force as law. But Martens said the agency is well within its legal right to issue permits before that process is complete.

Deborah Goldberg, an attorney for non-profit environmental law firm Earthjustice, said she believes if the department agrees that hard-and-fast regulations are required then permits legally have to wait until the rulemaking process is complete.

“In this situation where there’s a lot at stake, if the law is as I understand it we’re not going to let them get away with it,” Goldberg said.

Other groups, such as Citizens Campaign for the Environment and Catskill Mountainkeeper, echoed Goldberg’s concern.

Martens, however, said the agency would be in compliance with the law when it issues permits before the official regulations are final, calling the decision to alter the oil and gas rules “a bit of belt and suspenders.”

“The rulemaking just adds strength to our ability to enforce them and it also reassures both the environmental community and the regulated community what the rules are,” Martens said in an editorial board interview with the Press & Sun-Bulletin.

A spokesman for the state Independent Oil & Gas Association sided with Martens.

“The (agency’s report) will provide the framework to protect the state’s natural resources,” said James Smith, the trade group’s spokesman. “The commissioner is committed … to an inspection and enforcement program that will ensure maximum environmental protection.”

The rulemaking process would require a separate public comment period, which could come after high-volume hydrofracking has already begun in New York.

But its not just environmental groups that may have legal complaints with the DEC report, which recommends a ban on drilling within 4,000 feet of the New York City and Syracuse watershed.

The New York City watershed in the Hudson Valley includes a significant portion of Delaware County. On the border between Delaware and Broome counties, a coalition of landowners signed a $110 million deal in 2008 to lease their 47,000 acres of gas rights to XTO Energy, a company since bought by Exxon Mobil.

About 15 percent of that land falls within the watershed the DEC is proposing to put off limits, according to Sanford Supervisor Dewey Decker, who led the coalition.

Decker said those landowners, who wouldn’t have the chance to collect royalties if drilling is prohibited on or beneath their land, are requesting more information from XTO before they decide how to proceed. A decision on any potential legal challenge hasn’t been made, he said.

Martens said a legal challenge on its proposed oversight model for hydrofracking wouldn’t be unusual. It remains to be seen if any lawsuits could slow the process down, but the commissioner said his agency is working “carefully and prudently” to make sure its bases are covered.

“Almost with everything we do at the agency, we get challenged,” Martens said. “We get challenged every week on regulations that we put out with regard to just about everything, so I wouldn’t think this would be any different.”

Press & Sun-Bulletin staff writer Steve Reilly contributed to this report.


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