Consider This a Warning: Fracking Stuck on Political Fault Lines

Thomas Warns*

The moratorium on fracking in New York State has entered its sixth year. A recent New York Post editorial argues that fracking could bring major financial benefits to a cash-strapped state where voters recently approved a constitutional amendment authorizing the construction of 7 upstate casinos to create jobs and fill Albany’s coffers. Is Governor Cuomo’s delay blocking a burgeoning business opportunity at a time when New Yorkers need one the most? With State Republican Party Chairman Ed Cox calling for the ban to be re-examined, the New York Post Editorial Board has decided to take Governor Cuomo to task for his delay:

“Cox is right to call the policy of delay environmental Luddism, named for the 19th-century movement that opposed new technology. Even worse is the dishonest way the governor has gone about it: by making a policy out of putting off a decision. In one of the rare truths about fracking to come out of the mouth of a New York official, the state’s environmental conservation commissioner, Joe Martens, summed it up this way: ‘We don’t feel that there’s a great urgency.’

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With Gov. Cuomo still eyeing his chances for a presidential run in 2016, his stonewalling on fracking is not likely to change — at least not until after the Iowa caucuses. There’s probably nothing Cox and his fellow Republicans can do to change that.”

Hydraulic fracturing, popularly called fracking, is a practice that involves injecting water, sand, chemicals, and/or gasses deep into underground shale in order to liberate the natural gas that resides there in abundance. As part of the practice’s promise, the New York Post Editorial Board would likely point to the industry-funded study that found that the fracking boom created 2.1 million jobs in the U.S. last year, added $75 billion to state and federal revenues, and helped line the pockets of homeowners and businessmen alike who benefit from cheaper fuel.

The New York Post however brushes off the detrimental side effects of fracking. Numerous studies have determined that when operating near fault lines, hydraulic fracturing wells can cause minor earthquakes. Likely an even greater threat is the risk of water contamination from fracking; it would be disastrous if the upstate aquifers that keep New York City wet were irretrievably polluted in a search for cheap gas.

It would seem that the New York Post editorial board should be admonished for ignoring the significant risks of fracking, but that doesn’t mean they aren’t wrong to urge Governor Cuomo to quit dodging the issue with the moratorium. The costs of fracking are now more apparent than ever, making a further delay to “study” the issue unhelpful. The delay is pointless and politically motivated, as the state’s environmental conservation commissioner more or less admits. 

The prudent course would be to begin making preparations at once to allow fracking to proceed while making sure its costs are borne by the natural gas companies. The fracking-induced earthquakes have all been minor to this date, but that doesn’t mean they should be ignored or that a larger one couldn’t strike in the future. Private companies could step up by offering groundwater and seismographic surveillance to independently monitor the fracking wells. Homeowners could either enforce their property rights in the courts, or create contractual arrangements with companies that penalize the companies for exceeding acceptable limits on water pollution or earth-shaking. If fracking leads to significant groundwater pollution as many environmentalists fear, rising costs would put a quick end to this controversial drilling technique.

Of course, if these fears aren’t realized, then New Yorkers will benefit economically from an end to the moratorium. Indeed, proponents say that many of the alleged groundwater pollution incidents have alternate explanations that don’t implicate the fracking process itself. If Governor Cuomo believes the costs of fracking can never exceed the benefits, the only other democratically defensible maneuver would be to extend the ban permanently, clearly state the grounds for doing so, and let the political process determine New York’s energy future. Right now, the Governor’s delay is merely dodging accountability with constituents in order to score cheap political points.

 *Thomas Warns is a J.D. Candidate, class of 2015, at NYU School of law, Staff Editor on the NYU Journal of Law & Liberty , and author of the weekly column "Consider This a Warning."