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Extension of New York State Fracking Moratorium Passes State Assembly, But its Ultimate Fate is Unclear

On March 7, 2013, the New York State Assembly passed legislation to extend the moratorium in place on high pressure horizontal hydraulic fracturing - hydrofracking or fracking - of shale that has been in place since 2008. Though the bill, Assembly Bill 5424-A, passed the Assembly by a wide margin of 95 to 40, the legislation must still be approved by the State Senate and signed by Governor Cuomo before taking effect. It is unclear if the Senate, which is controlled through a power sharing agreement among Republicans, Democrats and the Independent Democratic Caucus, will act on the bill. 

The fate of the moratorium legislation is further complicated by the fact that the Cuomo Administration's own position on fracking is still evolving. The Department of Environmental Conservation missed its November 2012 deadline to finalize fracking regulations, and sought an extension of time so that the Department of Health to conduct further investigation into could consider whether the DEC adequately reviewed the potential public health impacts of the proposed regulations. State Commissioner of Health Dr. Nirav Shah, together with a team of health experts, is still conducting the review.

Even if the Senate passes the bill, precedent exists for Governor Cuomo to veto the legislation. Cuomo's predecessor, Governor David A. Paterson, vetoed a different version of a fracking moratorium in 2010, and instead issued an executive order putting in place a more narrowly defined moratorium. Of course, Governor Cuomo's ultimate course of action depends on the still-unfolding review of health potential public health impacts. If Dr. Shah and his team conclude that the DEC regulations did not adequately consider the potential public health impacts, the Cuomo administration would not likely veto the moratorium.

For Assembly Speaker Sheldon Silver and the other sponsors of Assembly Bill 5424-A, the calculus is much simpler. In a press conference announcing the legislation on March 6, 2013, Speaker Silver explained that "[o]ne, the health and well-being of the people must always take precedence over industry profits, and two, the natural gas locked within the Marcellus Shale and the Utica Shale isn't going anywhere. We're not going to lose it."

Whatever the fate of Assembly Bill 5424-A, stay tuned to the Periconi, LLC Environmental Law Blog for further updates.

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