Royally Fracked: Those 40,000 Comments on Hydraulic Fracturing Don’t Change Anything


Remember how New York’s citizens, many of them not too keen on having chemicals blasted into underground rock to extract natural gas, recently submitted 40,000 comments to the state’s environmental agency?

That public comment period on highly polemic hydraulic fracturing came to a close earlier this month, and the Department of Environmental Protection Conservation is now supposed to look through the comments — even respond to the more poignant ones — before making final recs, as required by law.

(In case you haven’t been following the fracking fracas, here’s a quick refresher: DEP top brass is trying to settle upon environmental guidelines for fracking, after Gov. Andrew Cuomo’s admin recommended that lawmakers lift a drilling ban. Meanwhile, a fair amount of Albany lawmakers have pushed for an outright ban, since many worry that the mining will pollute water with chemicals and even radiation).

You might wonder how much of an impact these comments might have when it comes to policy making. If 39,000 were anti-fracking, you might ask, would that mean that the state would have to prohibit the practice?

So Runnin’ Scared chatted with a few environmental lawyers about this…

Michael Livermore, Executive Director of the Institute for Policy Integrity and adjunct professor of law at New York University:

“What’s important is the substantive content of the comments — those do have some legal weight in the DEP’s administrative process. The number of comments is not important. If people — groups, individuals, and organizations — raise substantive issues, the DEC is under a general obligation to respond to the arguments that are raised. But if there are 20,000 comments that all say exactly the same thing, from a legal perspective, that’s the equivalent to one.”

Patrick Parenteau, Professor of Law at Vermont Law School (one of the country’s top environmental law programs):

“Normally comments don’t have that much of an impact. It does seem kind of odd to find out what the public thinks and ignore it. More often than not, though, it does seem like that’s what agencies wind up doing. Agencies rarely respond to negative comments by abandoning the proposal or radically changing it.

“There are exceptions when agencies have proposed something and then there’s been such a negative reaction that they’ve decided not to go forward. But there’s certainly nothing in the laws that requires an agency or a legislation to adopt the public’s recommendations. It’s not like a poll where 80 percent say they don’t favor it, so the agency says: ‘I guess I had better not do it.’

Michael B. Gerrard, Andrew Sabin Professor of Professional Practice at Columbia Law School:

“This is a very large number of comments to receive on a particular proposal, but it’s not unheard of to have many thousands of comments on controversial issue. However, it’s not a popularity contest. The state is required to consider all the comments, but it certainly need not follow the majority.”