On November 29, 2012, the New York State Department of Environmental Conservation missed its deadline under state law to finalize regulations for hydrofracking in New York. However, shortly before the deadline, it filed a Notice of Continuation with the Department of State to secure a 90 day extension for the rulemaking process.
During this 90 day extension, the Commissioner of Health, along with several outside experts hired by the state, have been reviewing DEC’s analysis of the potential public health impacts of fracking. The review is meant in part to help inform DEC whether or not it has met its obligation under the State Environmental Quality Review Act to consider the human health impacts of its proposed rulemaking.
Had DEC failed to file the Notice of Continuation, state law would have required the entire rulemaking process to start anew, entailing a considerable duplication of work, wasted resources, and further delay. Instead, DEC may continue with its current draft rules, and may even be heading off future SEQRA litigation.
Under SEQRA, an agency is required to show that it has taken a “hard look” at the potential health and environmental impacts of a proposed action such as the fracking rules. This additional analysis, while creating a delay in the short run, would bolster DEC’s case that it has met its obligation under SEQRA and discourage some future litigation.
As a requirement for receiving the extension on the rulemaking period, DEC has published its draft regulations online, together with its responses to the public comments it received during the original comment period. DEC is also accepting additional public comments on its draft fracking regulations until January 11, 2013.
More information on the draft regulations can be found on the DEC’s website here, and for more insight from the Periconi, LLC Environmental Law Blog on this subject, see here.
These draft regulations do not affect the current legal status of fracking in New York, which has had a statewide moratorium on fracking in one form or another since 2008. If the Commissioner of Health and the outside experts conclude that DEC has adequately considered the human health impacts of its draft regulations, the DEC could finalize the regulations as early as February 2013.