Fracking is Not Coming to the Finger Lakes. Here’s Why.
Hydraulic fracturing, known as fracking, is not coming to the Finger Lakes. The process to extract natural gas from shale formations deep below the surface of the earth is almost certainly a dead idea in a large part of New York State.
The reason is a concept known as “home rule.”
A few weeks ago, the state’s highest court upheld the rights of towns and municipalities to pass their own localized fracking ban or moratorium. The decision is a bit more complicated than that, but it essentially is an endorsement of home rule as a legal concept.
Towns that pass bans are within their legal rights, the court has decided. So while the state waits, and waits, and waits for Governor Cuomo’s administration to finally offer a decision on whether to open up New York for fracking, towns can act immediately.
The map above — from earlier this summer — outlines the current fracking bans and moratoriums. There are now nearly 200.
In the Finger Lakes as in the rest of the state, there are more moratoriums than outright bans. But there are movements afoot in many communities to pass bans. Now that the state’s high court has weighed in, there will be more urgency for communities to decide what they want to do; they’ll know it has legal backing. There are no more appeals on this issue.
Near the Pennsylvania border, not far from an active fracking industry, there are few bans or moratoriums. Communities there might decide that they want fracking. Apart from that border region, debate is more mixed. In the Finger Lakes, a tourism-centric region, even people who are generally pro-fracking have said that fracking (and its infrastructure) wouldn’t fit. Ted Marks, owner of Atwater Estate Vineyards, has said that fracking is a worthwhile exploration — somewhere else.
The majority leader of the state assembly told me that the energy industry can’t rely on the legislature to step in and effectively change the court’s decision. “This will stand,” Democrat Joe Morelle said. “The Court of Appeals has said that towns can pass bans on fracking. It’s not likely that the state assembly has an appetite to take this up. We’ve passed a moratorium on fracking, and while I can’t speak for the state senate, I can’t see it.”
Interestingly, this development offers a potential window into Governor Cuomo’s likely next move. For years, Cuomo has promised a thorough review and a decision on fracking. Now that home rule is established, Cuomo could easily say, “We’re lifting the ban in a year, and we’ll allow individual towns to decide whether they want fracking or not. It will be up to the people.”
That would effectively allow Cuomo to say that he is open to new energy solutions, and isn’t anti-fracking per se.
“The governor can now say that if you pass a resolution on your town board, we won’t issue permits in those communities,” Morelle said, adding that it seemed the logical decision for the governor to make.
But the energy industry has indicated some concern about trying to open fracking in a checkerboard of bans, moratoriums, and green lights. After all, what if they set up shop in one town, only to have that town pass a ban six months later?
“I would think the industry would be deterred,” Morelle said. “You’re not going to be investing dollars in communities with uncertainty.”
The anti-fracking movement disagrees with this assessment, pointing to other states that allow home rule, but maintain a bustling fracking industry. They’re urging all towns that don’t want fracking to pass bans, sooner than later. Deborah Goldberg, managing attorney for Earthjustice’s northeast regional office, told me that once the industry has a permit in a particular town, it will be very difficult for a future ban to be enforced.
Goldberg contends that the industry will try to get fracking up and running as soon as possible, hoping that wells can be established in towns that are slow to make local decisions. A group of landowners is suing — so far unsuccessfully — to force the Cuomo administration to make a decision on fracking before the election.
Goldberg’s scenario is possible, but unlikely in the Finger Lakes. There are a web of bans and moratoriums already in place, with more likely to follow. But the idea that towns should have public conversations quickly is a good one. The high court’s decision on home rule offers tremendous power to local communities.
Tom Wilber, journalist and author of the Shale Gas Review blog, tells me that the industry is almost certainly going to target the extreme southern tier of New York. “That’s where they’re rather certain about the viability of fracking,” Wilber explained. “There’s some debate about where the gas is, and where it isn’t, and it’s not clear that we know where the industry would go if they had the green light tomorrow. So the Finger Lakes absolutely should have that conversation now, but there shouldn’t be panic that the industry is coming any time soon.”