Co-authored by Thomas F. Puchner and David P. Flynn

Like the famous Punxsutawney Phil seeing his shadow, DEC has not timely emerged from its long-running study of environmental and health impacts of High-Volume Hydraulic Fracturing (“HVHF”), suggesting that there will be at least several more weeks, if not months, of delay before the final decision.  On Tuesday, Health Commissioner Nirav Shah, sent a letter to DEC Commissioner Joseph Martens stating that his review is “on-going” and anticipated to be completed “within a few weeks.”  According to Shah, the additional time is necessary “based on the complexity of issues” and for his team to attend briefings on several HVHF studies underway at the federal and state level.

The additional delay means that DEC cannot issue the Final Supplement Generic Environmental Impact Statement (“FSGEIS”) in time to meet regulatory deadlines and will be unable to complete the State Environmental Quality Review Act process necessary to finalize its proposed HVHF regulations.  The proposed regulations will expire after February 27, requiring the agency to restart the rulemaking process.  A new rulemaking process is widely expected to delay the Supplemental Generic Environmental Impact Statement (“SGEIS”) process by at least several months.  Commissioner Martens, however, suggested in a statement to the press that if the health review finds the SGEIS adequate, and the FSGEIS is completed, DEC may issue HVHF permits without final regulations in place, since the “regulations simply codify the program requirements.”