9:11am

Wed September 5, 2012
Hydrofracking

As New York's fracking decision nears, legal battles loom

New York State is poised to issue its final plans for regulating hydrofracking. But even with a decision imminent, there’s no guarantee this controversy will die down.

Instead, the fight will likely head to the courts.

New York State’s Department of Environmental Conservation (DEC) has spent four years studying fracking, and the agency’s final guidelines are expected soon— potentially paving the way to allow drilling.

And when that document is made public, environmental lawyers promise to be ready.

"We could file a lawsuit"

“We’re going to scrutinize them with the fine-tooth comb, and then we’re going to decide on next steps," says Eric Goldstein, an attorney with the Natural Resources Defense Council.

As of now, it is too soon to say if his group will file a lawsuit, Goldstein says, since no one has seen the DEC’s final plans.

“Good lawyers do everything they can to avoid litigation in the first place," he says.

But he’s still prepared for a courtroom fight, adding that any potential lawsuits will likely center on a 1978 statute known as the State Environmental Quality Review Act.

That law requires the DEC to go through an extensive review of fracking, which includes outlining potential environmental problems, discussing alternatives, reviewing public comments and publishing it all in a massive final document.

As the DEC has studied the issue, the agency's draft rules and regulations have held that fracking can be done safely with proper state oversight.

In the meantime, all involved with the issue are waiting to see how this final document will turn out.

“For example, if there was something left out, or something that was procedurally improper, we could file a lawsuit," says Deborah Goldberg, an attorney with Earth Justice.

Meanwhile, representatives from the gas drilling industry have frequently complained that the state has taken far too long to determine a course of action for fracking.

Among them is Tom West, an Albany attorney who represents the industry.

“I think the environmental stakeholder groups have made it very clear that no matter what the final standards are, they’re going to sue anyhow, which shows that their true intention is to block the development of our indigenous energy resources," he says.

West doesn’t believe the gas industry will take legal action against the DEC, since doing so could cause the whole environmental review process to start all over again.

If environmental groups attempt to secure an injunction to temporarily halt fracking, drillers would likely jump into the legal fray, West says. 

“I suspect that some operators will intervene in that litigation to explain that they have leases that are expiring, how much money they have invested in New York state.” 

An uphill legal battle?

To West, environmentalists face an uphill legal battle.

“I think it’s going to be very difficult for the environmental groups to challenge the final standards when they come out, because the DEC has bent over backwards to be accommodating to their concerns.”

Eric Goldstein agrees that it could be difficult to make the case that the DEC hasn’t done its job.

“Those challenging a state action have a heavy burden to show that the state has acted contrary to law, and that’s not an easy burden to prove," he says.

The DEC has spent all year reviewing more than 60,000 public comments on fracking, which they are required to respond to in their final report.

Nevertheless, the agency is still expecting to get sued.

For more from the Innovation Trail and Marie Cusick, visit their website, innovationtrail.org. You can also follow Marie on Twitter @MarieCusick.

The Innovation Trail is a collaboration between six upstate New York public media outlets. The initiative, funded by the Corporation for Public Broadcasting (CPB), helps the public gain a better understanding of the connection between technological breakthroughs and the revitalization of the upstate New York economy.

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