Legislative Memo

Darren Suarez
Director of Government Affairs
T 518.465.7511


S.5123-A (Tkaczyk)/ A.7503 (O'Donnell)



Prohibition on Transportation, Treatment, Discharge or Disposal of HVHF



April 28, 2014


The Business Council opposes this legislation because the legislative intent is without merit, the bill is poorly crafted, is potentially unconstitutional and if enacted the effects of the bill would be adverse.

This legislation is predicated on a misunderstanding of the statutory and regulatory rules that govern the transportation, treatment, handling, discharge and disposal of waste. Current Federal and State laws rules and regulations provide for the safe handling of all types of waste, additionally, current laws and rules and regulations recognize that different waste products can safely be handled in different manners based upon their potential risks to human health and the environment.

Furthermore, the legislation is poorly crafted. The bill inserts a new section of law into the wrong section of current law. The new paragraph is interest into the section of law dedicated to liquefied natural and petroleum gas, and is unrelated to natural gas drilling. The sponsor failed to define key terms like high volume hydraulic fracturing or by-product. The failure to define by-product could easily be an issue as dogmatists could believe the legislation could ban positive by-products like butane and propane, which can be used for plastics manufacturing, or natural gas which is by-product of high volume hydraulic fracturing of oil wells.

The Commerce Clause of the Constitution of the United States provides that Congress shall have the power "[t]o regulate commerce among the several states." (U.S. Const. art. 1, 8, cl. 3). "Though phrased as a grant of regulatory power to Congress, the Clause has long been understood to have a ‘negative' aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce." (Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 98 (1994).)

The Court has stated that the protections of the commerce clause are not limited to economic protectionism but also cover environmental protectionism, specifically the Court in Philadelphia v. New Jersey, stated "it (a State law) may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently" (Philadelphia v. New Jersey, 437 U.S. 626-27 (1978)).

The Fourth Circuit found even when a statute does not overtly discriminate against out-of-state interests, it is still examined in light of its practical effect or purpose "[t]he limit does not have the same effect on in-state as out-of-state wastes because the limit can be lifted [on behalf of South Carolina]." Id. "Thus, the overall limit is not facially neutral, but rather discriminatory." (520 U.S. 1113, cert. denied, 117 S. Ct. 2478, 138 L. Ed. 2d 987 (U.S. 1997) at 788. See also C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 391 (1994)). Thus is could follow because the State of New York does not currently permit high volume fracturing this legislation is not neutral but rather is discriminatory and unconstitutional.

The intent of this legislation singles out waste from one source regardless of risk. The intent of this legislation can only be to express opposition to drilling.

The sponsors of the legislation should be reminded that New York has a long history in natural gas production under stringent regulations. New York drilling companies in recent times drilled approximately 1000 wells each year in this state, with hydraulic fracturing as a key production method.

This bill is premised on bad science and misinformation that will have a negative impact on economically struggling communities. Natural gas production will yield extensive new job opportunities, provide increased state and local tax collections, and boost local economies and provide long-term growth particularly in areas in desperate need of economic growth.  

For these reasons the Business Council recommends against approval of S.5123 / A.7503.