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Politics and Government

Legal experts say fracking decision delay could be smart move

A legal expert says that the Cuomo administration’s move to delay for another 90 days the decision on whether to allow hydrofracking in New York makes sense. Meanwhile, some health care professionals say a review underway on the health effects of fracking is a sham.

When the Cuomo administration announced two months ago that it wanted an additional review of data on potential health effects of hydrofracking, Governor Andrew Cuomo said he was going the extra mile to ensure that the state could win anticipated court challenges from environmental groups.

“You could actually be expediting the process,” Cuomo said back on September 24. “Because, what could be months or years of litigation may be avoided.”

The health review, which is being conducted by state Health Commissioner Dr. Nirav Shah with the help of three recently hired outside experts, was not finished in time for a November 29 deadline. By that date, New York was supposed to complete a process to set up rules and regulations for fracking, or start all over again. Instead, the Department of Environmental Conservation asked for a 90-day extension.  

Yvonne Hennessey, an attorney with Hisock and Barclay, specializes in oil and gas industry litigation. She says she is not surprised by the development.

“I’m happy that they are going to continue and instead of start anew,” Hennessey said.

If the environmental agency had gone back to square one, it could be another year before a decision was made on whether to allow the gas drilling process. Now, the decision could come as early as late February.

Hennessey says the governor is correct in saying that the health review and 90-day delay may strengthen his administration’s hand in court. She says any legal challenges would be heard in a special procedure by a New York state Supreme Court judge. And she says the multi-year environmental review process, as well as extra actions by the state, would likely be looked upon favorably.  

“On substantive issues, there’s generally deference given to the agency and their area of expertise,” Hennessey said. “I think it will be very hard for a judge to say that the agency didn’t take a hard look.”

Meanwhile, there has been criticism of the health review that was the reason for the latest delay in the fracking approval process.  Opponents of fracking, who have called for a wide ranging independent review of all potential health impacts, say the public has been given no information about what the health commissioner and the three nationally known experts are examining. Among the critics is Sandra Steingraber, a biologist at Ithaca College.

“We don’t know what’s in this document that they’re reviewing, it’s a secret,” Steingraber said. “We don’t know what process they are using to analyze the document. The process is also a secret.”

One of the health experts has said that the panel was given a date of December 3 to finish its review, giving them just over two weeks to complete their work. Larysa Dyrszka, a retired pediatrician, says that is not enough time.

“Even the most esteemed experts cannot possibly do work that we’ve been looking at for the past four years in two week’s time,” Dyrszka said.

A spokeswoman for the Department of Environmental Conservation says the 90-day extensions will include another, 30-day public comment period. But it is likely to include only written comments, not more public hearings.