On June, 29, 2015, the New York State Department of Environmental Conservation (the Department) officially banned fracing, opening the gates for legal challenges. Interestingly, the Department doesn’t plan to change this stance until controversial ongoing public health studies are completed.
The ban comes in the form of the Department’s “finding statement” in its Final Supplemental Generic Environmental Impact Statement (SGEIS) examining the potential impacts of high-volume hydraulic fracturing (HVHF).
The ban comes as no surprise as the SGEIS, released on May 13, 2015, recommended the prohibition of HVHF on the majority of New York’s Marcellus shale play area. HVHF is often used in conjunction with horizontal drilling and multi-well pad development—both of which have been utilized to access the Marcellus shale.
The “findings statement,” echoing the concerns listed in the SGEIS, relied on the environmental concerns surrounding the high volumes of fracturing liquids and drilling waste associated with horizontal wells. Additionally, concerns surrounding air quality, truck traffic, noise, habitat, cultural, historic and natural resources, agriculture, community character and socioeconomics were listed as potential impacts.
A major hurdle to overcome before the Department will allow fracing will be establishing more certainty that the public health risks either do not exist or can be sufficiently mitigated. The Department stated that it will adhere to the recommendation to ban fracing in New York State until completion of ongoing studies exploring the relationship between HVHF and public health risk and outcomes. However, many of these studies are several years from completion. More importantly, these types of public health studies have been heavily criticized by industry.
Relationship studies (those using epidemiological principles) have been used frequently the past few years to examine relationships between fossil fuel industries and potential health effects. However, these studies have consistently been exposed to contain major flaws. The Marcellus Shale Coalition highlighted several flaws in recent studies attempting to link public health effects to fracing such as: selective sampling, lack of baseline comparisons, failure to provide critical context, etc. Similar studies attempted to link negative health effects with mountaintop mining. However, these studies also contained major flaws. For instance, residence in a mountaintop mining county does not necessarily indicate exposure to mining.
While the subject matter of the studies grab major headlines, these flaws often receive little press. The Department did acknowledge that studies such as these have difficulty linking health complaints and outcomes to specific chemicals or substances emitted from a HVHF operation. Despite the known issues, it appears fracing in New York will be dependent upon these ongoing public health studies.
This article was author by Matthew S. Tyree, Jackson Kelly, PLLC.