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The legacy of New York's fracking decision 

New York's long struggle with fracking is over, except that it isn't.

Next month, the State Department of Environmental Conservation will officially wrap up its review of high-volume hydraulic fracturing, the natural gas extraction technique under review since late 2008. The big news: it intends to prohibit high-volume fracking in New York, DEC Commissioner Joseph Martens said last week during a meeting of Governor Andrew Cuomo's cabinet.

But with fracking used widely in other states, several issues remain that could impact New York. Some landfills in the Finger Lakes region and Southern Tier take in drilling wastes from out-of-state wells, for example, while trains carrying oil from the Bakken Shale in North Dakota pass through Upstate's most populous areas, including Rochester and some of its suburbs.

And there's no guarantee that state officials won't someday revisit their decision to ban fracking. If natural gas prices go up, for example, officials could face pressure to reverse course.

There's also the question of what the decision means for Cuomo. It's no secret that New York's governor has presidential ambitions, and the fracking ban gives Cuomo another big-ticket, nationally relevant progressive action to add to his resume. But environmentalists have other reasons to be upset with the governor. And the ban surely won him few friends among Republicans, conservatives, and business groups.

It's the fracktivists who've spent the last few years vigorously protesting and advocating who scored the biggest win with last week's decision. In explaining their reasoning for the ban, Martens and acting state Health Commissioner Howard Zucker echoed some of the prevailing concerns of statewide environmental organizations, grassroots activists, and some municipal officials.

Martens said that the DEC's review of high-volume fracking identified dozens of potential negative impacts to air, water, public health, and infrastructure. And Zucker said that a lack of comprehensive scientific data combined with studies connecting fracking to air and water pollution raised red flags during the health department's review. And he said that he wouldn't want his own family to live in a community where high-volume hydraulic fracking — which he called HVHF — is taking place.

"Until the science provides sufficient information to determine the level of risk to public health from HVHF to all New Yorkers and whether the risks can be adequately managed, DOH recommends that HVHF should not proceed in NYS," Zucker wrote in a letter to Martens that accompanies the public health report.

Environmental groups praised the commissioners and Cuomo. But this isn't, or shouldn't be the end of the fracking debate in New York. A careful reading of state officials' remarks creates the distinct impression that this decision can be revisited once a stronger body of research develops.

Elizabeth Moran, water and natural resources associate for Environmental Advocates of New York, says that nobody's seen the final language of the DEC's forthcoming findings. With that in mind, she says, it's tough to know how easy it'd be for the state to change its mind.

"With any action that is taken through executive authority, there is always the risk of it being undone by a future administration," Moran says in an e-mail. "A lot of that will depend on how it is written to begin with."

Anti-fracking activists have to move forward with caution. New York has put a pin in fracking for the foreseeable future, but the technique is widely used in neighboring states. And some of those issues spill over into the Empire State.

The looming threat of fracking helped fracktivists and environmental groups bring attention to these peripheral issues. But with the larger matter now settled, activists risk losing traction.

In recent years, as many as six landfills west of Syracuse have accepted fracking waste from Pennsylvania, according to the environmental group Riverkeeper. That includes well cuttings and soil contaminated by waste water from wells. Environmental groups say that those materials should be considered hazardous waste because of the radiation and chemicals they contain.

Environmental groups and activists have pushed the New York State Legislature to prohibit regular landfills — those that don't accept hazardous waste — from taking in that material. They've gotten key Democratic Assembly members and Senators to advance legislation to that effect, but Republican leaders in the State Senate have blocked the bills.

The groups have also pushed the State Legislature to ban municipal water treatment plants from accepting out-of-state fracking waste water, but again face opposition in the Senate. Fracking opponents and some municipal officials say that the plants aren't built to handle the briny water, which could lead to expensive repairs or possible pollution discharges.

Some municipal treatment plants — including facilities in Niagara Falls, Auburn, and Buffalo — have considered but ultimately rejected requests to treat waste water from gas wells in and outside of New York. (New York has a few thousand conventional natural gas wells.)

Fracking opponents have convinced a number of communities across New York to ban the technique and associated activities; the state's courts have said that local governments have that right. In Monroe County: Brighton, Mendon, Perinton, and Rush have fracking bans on the books, and the City of Rochester has a moratorium in place.

The bans offer communities protection if fracking is ever revisited in New York, but it's an open question whether local officials will continue to enact such laws; they may no longer see fracking as a threat.

But that isn't the case in Penfield, where town officials passed a fracking ban on the same day that the state issued its decision. There's no way to know what the future holds, says Supervisor Tony LaFountain, and town officials want to make sure that Penfield is protected.

New York will become the largest state to ban fracking and the only one with a significant shale resource to do so.

How the ban influences Governor Cuomo's political legacy is complicated and uncertain.

At the state level, the fracking ban may not have much of an impact on Cuomo's standing with the public. Polls show that New Yorkers are almost evenly split on fracking, though over the past year opposition has grown.

The ban will likely make little difference in Cuomo's standing with environmental or business groups, who've both had complex relationships with the governor.

While environmental groups are happy that the state rejected fracking, they're still battling the Cuomo administration on other matters, ranging from plans for replacing power plants to the administration's attempts to use environmental funds for a new Tappan Zee bridge.

And Republicans, conservatives, and business groups are blasting the fracking decision.

"Although 35 states have created jobs and revenue from natural gas fracking, the Cuomo administration chose not to explore this industry," Assembly Republican Minority Leader Brian Kolb said in a statement last week. "So, what now?"

As for the presidency, the Cuomo administration's position on fracking could make the governor more attractive to progressive and moderate voters in other states. But it could also make him a target for conservatives as well as for the oil and gas industry.

Cuomo has been careful not to take credit for the fracking decision. He says he's just following the recommendation of the state's health and environment commissioners, who are just following the science. (But Cuomo also has a reputation for micromanaging, and his critics greet these claims with skepticism.)

In the flood of statements that came after the decision, the Cuomo administration received support from three Cornell University researchers: city and regional planning professor Susan Christopherson; ecology and environmental biology professor Robert Howarth; and civil and environmental engineering professor Anthony Ingraffea. Howarth and Ingraffea are well-known for research showing fracking's contributions to climate change.

"The unmistakable conclusion is that shale gas development poses unacceptable risks to the climate and to individuals living near shale gas fields," Howarth said in the statement. "While too many political leaders have continued to ignore this evidence, New Yorkers can be proud of our governor. In banning shale gas from our state, Governor Cuomo has based his decision on science and the interests of the public."

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