So what’s next for fracking policy in New York state...? Hint: Cuomo’s move buys time prior to elections

Governor Andrew Cuomo’s administration is keeping doors open both for an extended review of New York’s shale gas policy, and for lifting a moratorium that has prevented exploration for more than four years.

This ambivalence (which I’ve written about here) makes sense given the uncertainty of the state’s legislative composition pending elections. In another month, Cuomo will know whether he is working with a Legislature ruled by Democrats, who are wary of embracing the industry that is aggressively developing the Marcellus Shale in Pennsylvania; or whether he is working with a Republican controlled Senate, lead by pro-drilling leadership that has effectively quelled any attempts to pass legislation to hinder fracking in New York.

Political uncertainties aside, there are three major administrative pieces in play to New York’s fracking policy puzzle.

One is a review on the environmental impacts of high volume hydraulic fracturing. That review, in the form of a document called the Supplemental Generic Environmental Impact Statement (SGEIS), has been through various drafts and has been evolving in the face of public criticism since 2008. The final version of the review has been widely anticipated by year’s end, although it has no legal deadline. The review outlines conditions under which permits would be granted.

The second piece – called rulemaking – is designed to produce regulations, and it's to be built on the findings of the SGEIS. There is a Nov. 29th deadline to complete rulemaking, and, accordingly, finalize regulations that would apply to shale gas development. Unlike the SGEIS, which produces outlines that leave oversight to the discretion of permitting officials, the regulations would create standards that can be uniformly enforced.

The third piece is a health review of fracking. DEC Commissioner Joseph Martens announced last month that will turn that part of the process to Department of Health Commissioner Nirav R. Shah, who will set up an independent advisory panel to help with the job. The health assessment was a late addition by the Cuomo administration after environmental groups threatened to sue the state if the DEC began issuing permits for high volume fracking before public health impacts were documented. Activists are now bringing even more pressure to bear. Today, a group of public health professionals gathered at the Capitol Building in Albany to urge the administration to make the review transparent and open. “No one in the public or medical community has seen the DEC’s review of health impacts, nor has the administration shared details regarding who was involved in its development or what the process and opportunity for input will be,” said David O. Carpenter, director of the Institute for Health and the Environment at the University at Albany's School of Public Health.

So with all this unresolved, when will the shale gas era begin in New York?

Last week, DEC spokeswoman Emily DeSantis stated that agency officials do not expect to meet the Nov. 29 rulemaking deadline. That would mean effectively re-starting the rulemaking process, with at least one public hearing and an indefinite delay. DeSantis also confirmed the possibility that the state could begin issuing shale gas permits after the SGEIS is completed, while the regulations are still being developed.

Where does the health study fit in? Responding to my questions to clarify the timeline, DeSantis said the health study would be factored into both the SGEIS and the rulemaking process, but, she added, “It is undetermined if permits would be issued before rulemaking is complete.” Officials remain unclear on that point, I suspect, because their boss in the governor’s mansion has no reason to commit himself before he has to.

I asked several attorneys representing key stakeholders how they see the process unfolding from here. Here’s a sampling of responses:

Tom West, of West Law Firm, represents the industry. He anticipates the state will begin issuing permits after the SGEIS is complete, and prior to the completion of the rulemaking process. “In order for DEC to refuse to process permits following the issuance of the final SGEIS, they will have to declare some sort of moratorium,” West said.

Kate Sinding, a senior attorney with the National Resources Defense Council, represents environmental interests in line to challenge the industry. She sees things differently. “From our perspective, it would be a huge mistake – and quite possibly illegal – to issue permits prior to completing the rulemaking process,” she said. In addition to a completed health assessment, “It is essential that the public have the opportunity to see and weigh in on the state’s planned approach before it allows drilling companies to start breaking ground.”

Roger Downs, representing the Atlantic Chapter of the Sierra Club, said he would not be surprised if the agency moves forward sooner, rather than later, depending on political circumstances. “We see no evidence that they will wait for a completed rule making process before issuing permits to drill. The terms of the Health study are still vague and we have no doubt that the Governor can rush a review that may satisfy the state's legal obligations without providing any new insight into the true effects of fracking's dangers.”

My take: Cuomo is buying as much time as he can for his staff to work through all the legal permutations, and to better gauge the political climate that he will face in another month.