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Drilling rig in the Marcellus Shale region. Photo: Laurie Barr
Drilling rig in the Marcellus Shale region. Photo: Laurie Barr

Fracking supporters, foes prepare legal next steps

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New York State is poised to issue its plans for hydrofracking. The decision could come any time after Labor Day. But there's no guarantee the controversy will die down, and both opponents and supporters are exploring their legal options.

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Reported by

Marie Cusick
Reporter, The Innovation Trail

New York State’s Department of Environmental Conservation has spent four years studying hydraulic fracturing, and the agency’s final guidelines are expected out soon, potentially paving the way to allow drilling.

And when that document is made public, environmental lawyers will be ready. “We’re going to scrutinize them with the fine-tooth comb, and then we’re going to decide on next steps, says Natural Resources Defense Council attorney Eric Goldstein. He says it’s too soon to say if his group will file a lawsuit, since no one has seen the DEC’s final plans. “Good lawyers do everything they can to avoid litigation in the first place.”

But Goldstein says he’s still prepared for a courtroom fight. Potential lawsuits, he says, 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.

Over the years the DEC has held that fracking can be done safely, as long as it’s properly regulated. But everyone is waiting to see how this final document will turn out, including Deborah Goldberg, an attorney with Earth Justice. She says if, for example, there was something left out of the document, or something that was “procedurally improper”, her organization could file a lawsuit.

Meanwhile, representatives from the gas drilling industry have frequently complained that the state has taken far too long to approve fracking. Among them is Tom West, an Albany attorney who represents the industry. He says he thinks “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.”

West says he 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.  But he says that if environmental groups try to get an injunction, or a temporary court ban, on fracking, drillers would likely jump into the legal fray: “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.”

West adds that he thinks 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 of the Natural Resources Defense Council 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.”

The DEC has spent all year reviewing more than 60,000 comments on fracking from the public, which it is required to respond to in its final report. Nevertheless, it's still expecting to get sued.

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