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DEC Issues New York State's Official Rationale for Fracking Ban

DEC has issued its long-awaited environmental impact study for high volume horizontal fracturing, or fracking, in New York State. This document contains the state's official findings on the environmental and human health impacts of fracking, namely, that too much uncertainty surrounds the impacts of the process to proceed with issuing permits for fracking.

This constitutes the legal basis for the state's highly publicized ban on fracking. Formally known as the Findings Statement for the Final Supplemental Generic Environmental Impact Statement on the Oil, Gas and Solution Mining Regulatory Program, it has been seven years in the making.

Under New York's State Environmental Quality Review Act or SEQRA, the state must identify and mitigate adverse environmental impacts from its actions. In 2008, the prospect of widespread adverse environmental impacts from the n-emerging technique of fracking called for analysis before it was allowed to proceed wholesale in the state. Accordingly, then-Governor Paterson first ordered a SEQRA review of New York State's oil, gas and solution mining regulatory program to determine if the state should begin issuing fracking permits and issued a moratorium on fracking until the analysis was complete.

As previously been reported by the Periconi, LLC Environmental Law Blog, that moratorium stayed in place in one form or another as the state legislature squabbled and DEC missed deadlines to promulgate fracking regulations. It became apparent in December 2014 that the state was leaning towards an outright fracking ban when the New York State Department of Health issued its independent report on the potential public health impacts of fracking.

That report noted the significant uncertainties surrounding the public health outcome of fracking, and concluded that it should be not be allowed in New York until "science provides sufficient information to determine the level of risk to public health from [fracking] and whether the risks can be adequately managed."

The DEC based its findings in large part on the DOH's 2014 findings, as well as independent studies and its review of an unprecedented 260,000 public comments in its draft supplemental generic environmental impact statements issued in 2009 and 2001. The DEC concluded that there was too much risk of public and environmental harm from fracking, and no clear ways to mitigate those risks. It memorialized its eight years of analysis in its May 2015 Supplemental Generic Environmental Impact Statement.

In June 2015, the DEC issued the official findings statement memorializing the conclusion from its years of review. According to the findings statement "the significant adverse public health and environmental impacts from allowing high-volume hydraulic fracturing to proceed under any scenario cannot be adequately avoided or minimized to the maximum extent practicable in accordance with SEQRA."

Accordingly, the DEC will issue no permits for fracking in New York State for the forseeable future.

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