No Fracking Way - New York to ban fracking based on adverse health data (lawsuits likely to follow)

The Department of Environmental Conservation (DEC) will issue a legally binding findings statement to prohibit High-Volume Hydraulic Fracturing (HVHF) in the State of New York.

New York's move should motivate the Erin Brokoviches of this world to start their lawsuits against companies involved in fracking based on the plethora of adverse health data exposed.

This DEC's statement comes on the heels of the Acting Department of Health Commissioner recommending that fracking should not move forward in the State.

According to the Commissioner "I have considered all of the data and find significant questions and risks to public health which as of yet are unanswered,". The review by the Department of Health, entitled "A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development", is the basis for the DEC's decision to ban fracking.

The review states, in pertinent part, that "there are significant uncertainties about the kinds of adverse health outcomes that may be associated with HVHF, the likelihood of the occurrence of adverse health outcomes, and the effectiveness of some of the mitigation measures in reducing or preventing environmental impacts which could adversely affect public health."

The review summarizes "some of the environmental impacts and health outcomes potentially associated with HVHF activities:
• Air impacts that could affect respiratory health due to increased levels of particulate matter, diesel exhaust, or volatile organic chemicals.
• Climate change impacts due to methane and other volatile organic chemical releases to the atmosphere.
• Drinking water impacts from underground migration of methane and/or fracking chemicals associated with faulty well construction.
• Surface spills potentially resulting in soil and water contamination.
• Surface-water contamination resulting from inadequate wastewater treatment.
• Earthquakes induced during fracturing.
• Community impacts associated with boom-town economic effects such as increased vehicle traffic, road damage, noise, odor complaints, increased demand for housing and medical care, and stress."

Today is a bad day to own a fracking company. Yet, so many lives will be bettered as a result of this new rule.

Towns Can Now Use Local Zoning Laws to Ban Fracking

There are many towns on Long Island that pride themselves on their quaint, small-town characteristics and their colonial history. Residents of these towns often worry that their communities will be tarnished or disrupted by an excavation site in their backyards.

However, New York’s highest court has recently upheld the power of local governance to regulate businesses in its borders. According to this ruling, towns have the right to ban fracking by using local zoning ordinances if fracking disrupts the character and integrity of these communities.

Fracking is a method of hydraulic extraction. High-pressure fluid is injected into cracks in the earth to release a higher quantity of oil and gas. There is a huge movement in the United States against the use of fracking as it has numerous environmental risks, such as groundwater contamination and earth tremor causation.

The towns Dryden and Middlefield, both located in upstate New York, are rural communities that rely heavily on agriculture and small town tourism. In the mid-2000s, two companies, Norse Energy Corp. and Cooperstown Holstein Corp., had tried to develop and extract natural gas in the areas. Responding to rigorous protests, the Town Boards of Dryden and Middlefield banned the use of fracking due to the environmental and health implications involved in the controversial method. Nonetheless, the two companies maintained that state law was on their side and that they had the right to develop in the areas.

The New York Court of Appeals has upheld the decisions of the lower courts by ruling in favor of the towns. Pursuant to the Municipal Home Rule Law, by banning fracking, both towns were exercising their local governance rights in the preservation of the character, welfare, and aesthetics of their communities. If fracking threatens the integrity of a town, that town should be able to reject it based on the Home Rule Law.

Interestingly, this ruling was not based on any scientific conclusion that fracking is harmful to the environment. Oil companies that want to pursue fracking may do so in areas where fracking is not restricted or banned by local ordinances. Instead, the decision discussed the towns’ objection to fracking on the ground that it would cause heavy traffic congestion in the towns and industrialize the small-town, rural areas.

Also, this decision is of note as it comes out the exact opposite of the Court’s February 14, 2013 decision in Sunrise Check Cashing and Payroll Services v. Town of Hempstead, in which the Court declared that the Town of Hempstead could not ban check cashing establishments from the area because its zoning ordinance did not demonstrate that the business had a negative impact on the community. Consequently, reading these decisions together yields an understanding that a town can ban businesses such as adult entertainment and fracking for having negative impacts on the community, but cannot ban check cashing and fast food businesses as there is no objective negative impact. So, the Sunrise case reminds us that this latest decision on fracking is not to be read broadly in garnering an understanding that a town has free rein to prevent any business it dislikes from existing in its borders. Instead, a town must have a legitimate objective belief that the subject business negatively impacts the community, beyond conjecture, in order to block it from the Town’s jurisdiction.

This ruling is a victory for local governance, granting towns the power to preserve their character and integrity. It did not address the environmental impacts of fracking in itself, and we must look for future cases in order to obtain clarification on that issue.