Troubling Questions Raised by Shale Fracking Industry's Decision not to Challenge New York's High-Volume Hydraulic Fracturing Prohibition in Court

Use this Quick Action Guide to require Governor Cuomo to fulfill his promise to prohibit all types of High-Volume Hydraulic Fracturing in New York.

Greetings,

I write to inform you that the shale gas industry did not take legal action by the critical October 27th deadline to try to overturn New York's High-Volume Hydraulic Fracturing (HVHF) prohibition.

This is important and troubling. Before a Findings Statement was issued on June 29th to conclude the SGEIS proceeding, Governor Cuomo and industry officials repeatedly stated that the HVHF prohibition would surely be litigated.

After the limited and inadequate provisions of New York's HVHF prohibition were finally spelled out in writing, no litigation ensued.

These events underscore that we must hope for the best while taking urgent action to avoid the worst possible outcome. Before it is too late, we must close gaping loopholes in the limited HVHF prohibition in order to keep all types of shale fracking out of New York.

A Ton of Lawsuits?

When Governor Cuomo announced New York's HVHF prohibition on December 17, 2014 he said that it would face "a ton of lawsuits." Beginning that same day, pro-frackers repeatedly vowed that the prohibition would be "challenged," and "reversed."

The shale gas industry has litigated numerous local fracking prohibitions from coast-to-coast. Yet, it took no legal action to challenge the only so-called statewide fracking "ban" in the nation.

What was industry's rationale for staying out of court? We do not know, but the simplest explanation is that pro-frackers believe New York's limited HVHF prohibition has loopholes big enough to drive their frack trucks through.

First, there is no dispute that "waterless" shale fracking methods, notably gelled propane, are totally exempted from the HVHF prohibition.

Second, the language of the HVHF prohibition is so uncertain and untested that even fracking with "300,000 or more gallons of water" might not actually be outlawed.

In order to resolve this matter once and for all, Governor Cuomo has received two coalition letters with more than 2,300 signatories which request that a Supplemental Findings Statement be issued to prohibit "gelled propane" fracking and all other types of fracking.

The Governor has failed since July to reply to our respectful requests despite extensive local, statewide and nationwide media coverage as well as intensive phone banking.

As a result, two well permit applications received more than six months ago for gelled propane fracking in Barton, NY could be granted literally any day.

Take Action Today to Prohibit All Forms of Shale Fracking in New York

For all these reasons, I urge you to use this Quick Action Guide to increase efforts to require Governor Cuomo to fulfill his promise to prohibit all forms of shale fracking in New York by issuing a Supplemental Findings Statement.

Why We Must Be Concerned

When Governor Cuomo originally announced his HVHF prohibition, it was widely reported that, "Addressing reporters' questions, Cuomo said he expected 'a ton of lawsuits' as a result of any decision in such an emotional debate (bolded quotes here and below are emphasis added)." See: Business groups react to New York's fracking ban

When the Final SGEIS was released in May, Heather Briccetti, President and CEO of the Business Council of New York State, said, “We are confident that today’s decision will ultimately be reversed.”

Brad Gill, President of the Independent Oil and Gas Association (IOGA) of New York, said at that time, “Hopefully this decision will be successfully challenged and ultimately reversed.”

See: Frack this: Oil and gas industry leaders angry over DEC's report

Former Department of Environmental Commissioner (DEC) Martens said in July after the SGEIS Findings Statement was issued, "I think when this is challenged -- and it will certainly be challenged -- the courts will see that we were deliberative, that we explored every aspect of hydraulic fracturing inside and out and certainly there was a progression of thought."

At that time, Brad Gill was quoted, "I am confident that there is at least one challenge that will be filed." He added, "It is from an entity that is not a member of IOGA of New York, but we are certainly cooperating with this person in his pursuit."

See: New York's fracking ban starts the clock for lawsuits

Karen Moreau, executive director of the API New York State Petroleum Council, a gas-industry trade group reportedly said, "From a legal process point of view, we've been waiting for the final findings in order to determine what course of legal actions our companies might want to take."

See: As NY readies to ban fracking, lawyers prepare to sue

As Fracking Ban Nears, Gas Industry Prepares Legal Action

Please note that a single property owner who is an attorney representing himself filed a lawsuit last May about being unable to frack for shale gas on his own property. If this litigation effort gains a favorable outcome, it could set an important precedent.

Quiet lawsuit challenges N.Y.'s fracking ban

See: Fracking deadline passes without lawsuit

Conclusion

For all these reasons, I urge you to intensify efforts to require Governor Cuomo to issue a Supplemental Findings Statement to prohibit all types of High-Volume Hydraulic Fracturing methods in New York, including "waterless" technologies involving gelled propane or Liquefied Petroleum Gas. The inadequacy of New York's HVHF prohibition limited to "300,000 or more gallons of water" must be resolved once and for all without further delay.

More shortly.

Onward and upward,

Walter