In a February 12th letter from NYS Department of Health (DOH) Commissioner Nirav Shah to DEC Commissioner Joe Martens, Dr. Shah advised that the DOH study on the health impacts of hydraulic fracturing used in the natural gas drilling process “…will require additional time to complete … I anticipate delivering the completed Public Health Review to you within a few weeks, along with my recommendations.”
The 4 ½ year long environmental review process was to have resulted in the release of the Final SGEIS on February 13th. The timely release of the SGEIS, under the relevant procedural regulations, would have provided the basis for new gas drilling and production regulations that, in turn, would have had to be released for public comment by February 27th.
DEC Commissioner Martens’ response was to the point. He said, “The previously proposed high-volume hydraulic fracturing regulations cannot be finalized until the SGEIS is complete.” And, “I will not issue a Final SGEIS until that review is complete and I have received Dr. Shah’s recommendations.”
Martens made further comments which could, arguably, give those anticipating completion of this process some hope. Martens stated that if the DOH review concludes that the SGEIS has adequately addressed the health concerns arising from high-volume hydraulic fracturing, “… and I adopt the SGEIS on that basis, DEC can accept and process … permit applications 10 days after issuance of the SGEIS.” Martens differentiated between adopting the Final SGEIS, and being able to process drilling permit applications 10 days thereafter, and completing the process for adoption of the new regulations. However, if the DOH Review indicates that the SGEIS does not adequately address the health issues, then it’s back to the drawing boards. In that case, Martens pointed out, the SGEIS would have to be modified to address such issues and the date when the SGEIS would be completed and adopted by DEC would be delayed indefinitely.
The great Empire State has become the “umpire state.” Governor Cuomo, and his appointees, are trying to thread the needle and balance the competing interests of those in favor of proceeding with gas drilling and those opposed. Most landowners we represent, while in favor of proceeding with the timely issuance of drilling permits, also want sound and responsible regulatory controls to protect not only their lands but also their communities. The Governor and Commissioner Martens should proceed based on the science and the experience of a number of other states which have safely allowed gas drilling with hydraulic fracturing to proceed within a responsible regulatory framework. I suggest that it’s time for State Government to be decisive – stop pandering to the special interest groups on either side of this issue.
If New York is to truly become the “New New York for Business” our State officials, both elected and appointed, must consider the science, ignore the chanting din of some, and make a decision to proceed.
The members of the firm’s Natural Gas Working Group work with landowners who desire to preserve, protect and exercise their real property rights – including their mineral rights relevant to any natural gas activities – whether or not they choose to enter into a natural gas lease. If they do decide to enter into such a lease arrangement, we assist in negotiating for adequate provisions that provide protections and enforcement rights to preserve the current and future intended use of the property – not just for the period of drilling but for future generations as well.
Gerald A. Lennon is a partner on the Real Estate Team and is in charge of the firm’s Natural Gas Working Group. He can be reached by phone at 845-778-2121 toll free or 845-778-2121 and by email.