Help Save the Environmental Law That Banned Fracking
April 6, 2017
Mike Dulong
Legal Program Director
Photo: Sara Moriarty / Riverkeeper
We need your help to save the environmental review process that led to New York’s fracking ban. Under new regulations proposed by the Department of Environmental Conservation (DEC), a key part of the process would be removed, disempowering governmental entities and the public in favor of large developers and industry.
Click here to take action and send a message to DEC.
Specifically, governmental entities would be prohibited from providing public review of new information discovered during the environmental impact statement drafting process. In the battle to prevent fracking in New York, although concerns about public health were raised by citizens at the early stages of review, DEC initially declined to study them. It was only during the drafting process when new information became available that DEC staff realized fracking would have a devastating impact on human health and must be banned. Under the new regulations, the agency would be prevented from subjecting its preliminary conclusions on such new information to public review and comment before finalizing.
DEC would make “scoping” mandatory for all reviews. Scoping is the process by which the agency responsible for the review “identifies the potentially significant adverse impacts related to the proposed action that are to be addressed in the draft environmental impact statement.” This would be a positive step, as the scoping helps inform stakeholders about the issues at an early stage and sets expectations for the review process.
However, scoping is not perfect. New issues and information often become evident only after scoping has been completed, and projects are often changed considerably. Those new issues are precisely the ones most deserving of study, as no one has considered their consequences before. When such new information arises, agencies sometimes incorporate it into a second draft environmental impact statement and subject it to additional public review, as DEC did during the fracking review.
The DEC now proposes to take discretion away from agencies to subject their preliminary conclusions on new information to public review, instead skipping that crucial step to finalize the documents:
“Information submitted following the completion of the final scope and not included by the project sponsor in the draft environmental impact statement cannot be the basis for the rejection of a draft EIS as inadequate but such information may require a response to comment in the final EIS…”
Public review of draft environmental impact statements serves as an important litmus tests for the sufficiency of those statements, allowing the governmental entities responsible for the documents to remedy flaws before finalizing. Without the opportunity to subject the draft to public review, the agencies would be in the unenviable position of determining the sufficiency of final documents without hearing possible objections, which will lead to more mistakes and more litigation. Meanwhile, developers and project sponsors will have additional motivation to ignore or hide potential significant impacts at the early stages of study.
Public review at the draft environmental impact stage also serves to inform affected citizens and other stakeholders of the potential harms posed by a project. There is typically very little public awareness or understanding of the project at the scoping stage, prior to the draft. Under the new rule, the public would not have an opportunity to review the preliminary study of any new information raised after scoping was finalized, and therefore our subsequent input on those issues would be of little consequence.
Thanks to a successful environmental review process, DEC reached the correct outcome on fracking. But future proposals may not have the chance to be so thoroughly evaluated. Why put the power in the hands of developers and industry to railroad their projects through approval even when important issues remain insufficiently studied? Riverkeeper is urging DEC not to take this step, and we need your help.
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