The Fracking EIS in NY: The Empire State’s ‘Little NEPA’ Lands a Big Punch

A Final “Generic” Impact Assessment released on May 13 shows how this issue has matured over the last 4 years.

Fracking.  Unconventional gas.  Tight oil.  Marcellus.  Bakken.  By whatever name, anyone who knows anything about energy, climate, or environment knows the problem.  As supplies tighten, demand spreads, and extraction and transport technologies improve, more and more of what’s “in the ground” is either coming out or is being held “in reserve.”  When will we finally reach a point where *every* investor—not just the socially conscious who put planet and people over profits—decides that investing in fossil fuels is dumb?  That question comes down to a mind-boggling array of details, incommensurables, and uncertainty.  So they probably also know that sinking feeling that some policy decisions are simply too hard to make with the full panoply of information, uncertainty analysis, and quantified benefits and costs.  In those cases, most of us revert to intuition.  And “values.”  subsidiesAnd the hope that if enough collective pressure is put up against the further development of fossil fuels the other options will eventually reap the reward in the marketplace of ideas and the actual marketplace.  For they will finally be able to outcompete fossil fuels, despite the latter’s staggering record of state subsidization.  {See this report from The Guardian or this working paper by IMF staff.}

And then there’s New York State—where the government has been hard at work preparing a “generic environmental impact statement” (GEIS) since early 2009 assessing the expected benefits and costs of what it calls “high volume hydraulic fracturing.”  (This approach to gas mining involves the use of huge quantities of fracturing fluid, the contents of which vary but which are more likely than not to be about 98% water and the rest sand and some toxic compounds like benzene.)   {See this Wikipedia description of the systems.}

NY’s State Environmental Quality Review Act (SEQRA) is, in many ways, patterned after NEPA and allows an agency like NY’s Department of Environmental Conservation (NYDEC) to create a “generic” impact analysis for use where many similar decisions are expected to involve similar choices.  The result is a big analysis and smaller, subsequent ones that are “tiered” thereto (here, the permitting of wells, application by application).

New York State has garnered a lot of attention recently for its “fracking ban,” something that, technically, has attended the completion of a proper impact assessment—which finally arrived May 13. {See the DEC web page here.}

Fracking On Paper: The “Generic” Impact Assessment

What are NYDEC’s conclusions?  Across a range of considerations, NYDEC came to the conclusion that high volume hydraulic fracturing, where it is even to be permitted, merits serious and carefully executed mitigations and/or prophylactic measures to protect against both its “routine” and accidental-but-predictable consequences.  {See an Executive Summary here.}

The EIS examines potential threats of worker exposure, water well contamination, surface water contamination, well-pad impacts on state forests, wildlife management areas and parks, among other threats.  It weighs the merits of various mitigations aimed at well-control, spill containment, spill abatement, and public drinking supply exclusion zones.  It is exhaustive, if not in reaching to and deliberating all of the potential risks and benefits of fracking then in its sheer girth and breadth.

Perhaps the most salient fact about this “generic” EIS, though, is how it has come to be.  The (very enlarged) process was described as follows:

The public process to develop the SGEIS began with public scoping sessions in the autumn of 2008. Since then, engineers, geologists and other scientists and specialists in all of [DEC’s] natural resources and environmental quality programs have collaborated to comprehensively analyze a vast amount of information about the proposed operations and the potential significant adverse impacts of these operations on the environment, identify mitigation measures that would prevent or minimize any significant adverse impacts, and identify criteria and conditions for future permit approvals and other regulatory action.

Final 2015 SGEIS Executive Summary at 4-5.

Its path has been twisting.  NYDEC originally proposed to allow fracking—with significant exclusions and restrictions.  From its generic EIS, permitting decisions at particular wells might’ve proceeded, however gingerly.  Any of those might’ve been significant enough to merit their own impact analysis, although NYDEC seemed to allow that many would not (and would, thus, receive only cursory considerations which, in all likelihood, would simply reference the generic EIS).

That was 2011.

Since then, events and agendas have intervened.  New York’s Health Department released an influential review emphasizing the public health risks from fracking.  Perhaps more importantly, though, climate change urgency intervened—perhaps shifting the balance of reasons for/against permitting the fracking.  And the SEQRA process morphed into one of justifying a complete ban on “high volume hydraulic fracturing.”  How to do so in a “generic” EIS?  This is what the 2015 GEIS had to say:

Whether the combustion of natural gas results in a net increase of GHG emissions depends on what energy sources are being displaced by natural gas.  Replacing higher-emitting fuels such as coal and petroleum in the power, industry, building and transportation sectors may reduce GHG emissions. Recent research demonstrates that low-cost natural gas suppresses investment in and use of clean energy alternatives (such as renewable solar and wind, or energy efficiency), because it makes those alternatives less cost-competitive in comparison to fossil fuels. New York is also implementing a number of policies that promote the continued investment in renewables and efficiency, which should reduce the potential for gas development to pose an economic obstacle to development of renewable energy and investment in energy efficiency. In the long term, New York’s policies are directed towards achieving substantial reductions in GHG emissions by reducing reliance on all fossil fuels, including natural gas.

Final 2015 GEIS Executive Summary at 20.  And then there are fracking’s substantial methane emissions.  {See this study on quantifying them.}

methane molecule

methane molecule

But any way it’s sliced, New York’s ban on fracking has been a striking turnabout.  The 2011 GEIS avoided “categorical” conclusions in the abstract. It opted instead, from its careful “alternatives” analysis, to suggest that precaution should be the norm—precautions driven mostly by site-specific factors. It took pains to describe those mitigations and precautionary measures.

The greenhouse gas implications of fracking, of course, arise irrespective of siting.  And those implications are maddeningly complex.  To make the contrast between 2011 and 2015 clearer, though, it’s worth quoting from the 2011 GEIS at length:

The alternatives analysis . . . considers the use of a phased-permitting approach to developing the Marcellus Shale and other low permeability gas reservoirs, including consideration of limiting and/or restricting resource development in designated areas. As discussed above, [NYDEC] proposes to partially adopt this alternative by restricting resource development in the New York City and Syracuse watersheds (plus buffer[s]), public water supplies, primary aquifers and certain state lands. In addition, restrictions and setbacks relating to development in other areas near public water supplies, principal aquifers and other resources as outlined above are recommended. [NYDEC] does not believe that resource development should be further limited by imposing an annual limit on permits issued for high-volume hydraulic fracturing operations. [NYDEC] believes any such annual limit would be arbitrary. Rather, [NYDEC] proposes to limit permit issuance to match the . . . resources that are made available to review and approve permit applications, and to adequately inspect well pads and enforce permit conditions and regulations. Although it is not possible to predict the number of permit applications that will be submitted in any given area, and therefore proscribe the level of activity that any one operator may undertake in those areas, [NYDEC] has the ability to respond and adjust to conditions in the field. If it is demonstrated, for example, that the measures in place to mitigate noise impacts do not adequately address the impact of high-volume hydraulic fracturing on a host community, the department retains the option through the permitting process to impose additional conditions on operations, such as phasing of drilling operations on adjacent well pads, to prevent or mitigate cumulative or simultaneous operations from impacting nearby residents.

2011 GEIS Executive Summary at 27-28.

In short, from 2011—when impacts were mostly about local concerns—to 2015 when impacts were equally local (and proven by a longer record of mishaps and statistical study of places like Pennsylvania) and global, the risk-benefit calculus shifted noticeably.  Can we expect this phenomenon in other impact assessments?  In NEPA impact assessments?

Counting Global Factors in Local Policy Choices: Can NEPA Do What NY SEQRA Did?

For a variety of reasons, this might be one of the clearest examples of a state law that, while modeled on a federal law, operates and functions very differently therefrom.  Different in functional effect; different in political salience; different period.  The (Andrew) Cuomo Administration is in an admirable spot where fracking, climate change, and energy prices are concerned.  With so much gas development going on literally right next door, the citizens of New York State can benefit from the increased supply of (lower cost) natural gas that Pennsylvania creates.  Indeed, Pennsylvania could not, consistent with the federal Constitution, prevent that gas from going to New York even if it wanted to.  But fracking is becoming politically toxic.  For many reasons, including its implications for climate change, a diverse coalition opposed to further fracking is forming in places like New York.  So announcing a simple, categorical position against fracking might be a kind of political entrepreneuring.  It might benefit Governor Cuomo politically.  Of course, it might backfire too.  But it certainly has more political salience than what the 2011 GEIS promised.  It has made headlines and kept the punditry talking.  Time will eventually tell on much of this political calculus.  I offer absolutely no opinion on it.  For now, though, NY’s GEIS released last week stands like a monument to the shifting calculus many more of us will confront in the coming years where fossil fuels are concerned.


{Image: well fracking in southwestern Pennsylvania}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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