In a move that one journalist has described as politics trumping science, New York Governor Cuomo has announced that his administration will ban hydraulic fracturing statewide. With this ban, New York will join ranks with Vermont, which became the first state in the U.S. to ban the practice of fracking more than two years ago. At the time of Vermont’s ban, however, Vermont did not have any drilling projects underway, and there was no information to suggest that the state has underground gas reserves that could be tapped by fracking. Thus, arguably, the ban was largely symbolic. In contrast, the ban in New York will seal off about 12 million acres of Marcellus Shale.
Given New York’s natural gas reserves, there may be incentive for a constitutional challenge to its fracking ban, under either the Interstate Commerce Clause or the Supremacy Clause. Even if the ban is not successfully challenged, however, Governor Cuomo’s decision likely will not have a significant impact on the oil and gas economy because, traditionally, New York has not been a major energy-producing state. Those most significantly impacted by the ban may be New York citizens, who have witnessed – but will not share in – the prosperity experienced in neighboring Pennsylvania. For example, in Pennsylvania, energy companies have generated $2.1 billion in states and local taxes, and employment in the energy sector has doubled from approximately 13,000 in 2010 to over 28,000 in 2014.