Is New York About to Get Fracking? Not Exactly

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Ralph Wilson/AP

Environmentalists and gas drillers alike snapped to attention when the news alert went up earlier today: the New York Times reported that New York Governor Andrew Cuomo was ready to lift the state’s moratorium on natural gas drilling via hydraulic fracturing. The moratorium was put into place by Cuomo’s predecessor David Paterson, who signed an executive order last year mandating that hydraulic fracturing not be allowed in the state until New York’s Department of Environment Conservation (DEC) had finished a multi-year environmental review. Many people probably read the Times scoop and assumed that Cuomo’s move to lift Paterson’s ban would mean that New Yorkers could expect to see wells being drilled and fracked in their backyards tomorrow.

Turns out that’s not quite the case. As ProPublica reported today, Paterson’s decision was never really a “moratorium” because the laws requiring a lengthy environmental review were already in place before he put pen to paper . While the DEC will be giving its recommendations to Cuomo tomorrow, that update won’t be an official draft, which still needs to go through legal review. And once the official draft is complete, it still needs to go through a 30-day public comment period before regulators could actually write the final rules. All of which means that it will take months before gas drillers will be able to start fracking in New York’s Marcellus Shale—if they ever will.

It also appears that those rules will carry a number of restrictions. According to the DEC, the draft officials will be giving to Cuomo include the following recommendations:

  • High-volume fracturing would be prohibited in the New York City and Syracuse watersheds, including a buffer zone;
  • Drilling would be prohibited within primary aquifers and within 500 feet of their boundaries;
  • Surface drilling would be prohibited on state-owned land including parks, forest areas and wildlife management areas;
  • High-volume fracturing will be permitted on privately held lands under rigorous and effective controls; and
  • DEC will issue regulations to codify these recommendations into state law.

(More from TIME: Could Shale Gas Power the World?)

That still leaves as much as 85% of the Marcellus Shale in New York open to drilling, but it should help assuage the concerns of many environmentalists that fracking might somehow contaminate New York City’s vital watershed. Both New York City and Syracuse are unusual in that their drinking water is unfiltered, and New York’s new attorney general, Eric Schneiderman, has actually sued the federal government to force the Delaware River Basin Commission to complete a full environmental review on fracking in the region, which includes part of New York’s watershed. The recommendations also mention tighter rules on well construction, requiring additional casings near the surface of a well to prevent the migration of any gas or fracking fluid. (Faulty well construction may well have led to the contamination of water supplies in Pennsylvania and other states.)

Will those restrictions be enough to calm the critics of fracking? I’m skeptical. There is a determined lobby of environmentalists and property owners in New York state—including more than a few celebrities—who are opposed to all drilling and are not likely to give any quarter. New York state is not like Texas or Wyoming or Pennsylvania—states where natural gas drillers were largely able to get their own way without much push back, at least initially. The opposition in New York is influential—think of all those Manhattanites with upstate weekend homes—and the moratorium on drilling has given them time to organize and witness as neighboring Pennsylvania suffered through some of the initial problems with the rapid increase in drilling. The proposed recommendations seem to open the way for legal challenges—scientifically, how can there be different levels of environmental risk depending on whether drilling is occurring on public or private land?

(Video from TIME: The Fuss Over Fracking)

At the same time, if the final rules resemble the initial DEC recommendations, you can expect legal challenges from the drilling industry as well, or New York state property owners eager to lease their territory for drilling. Why are private lands and public lands treated differently? Why would all drilling be prohibited within 500 ft. of primary aquifiers if—at least as the drilling industry maintains—there’s no risk of contamination? That seems…iffy. Add in the fact that while the DEC may be wrapping up its environmental review of fracking, the Environmental Protection Agency is just getting started, and the Department of Energy has put together a new outside panel to examine issues around natural gas exploration. Far from clarifying, the picture around natural gas and fracking seems to be getting cloudier by the day—which might favor those who want to put off drilling indefinitely.

(Video from TIME: Flaming Faucets: When Fracking Goes Wrong)

I hope not. As I wrote in TIME’s cover story on fracking earlier this month, I think expanded domestic supplies of cleaner-burning natural gas are worth exploiting, but only if drilling can be done safely—and there was too much evidence that gas companies were cutting corners in the early days of the shale revolution. (Of course, the next question will be: “how safe is safe?”) There’s hope that as the industry consolidates—with larger, better experienced players like Exxon taking the lead—some of those problems may go away. New York’s tighter regulations may even point the way—but that won’t happen as long as both sides keep fighting the fracking wars.