Many neighbors and clients in our region are concerned with the die-off of honey bees. On July 17, EPA released its decision to deny emergency suspension of Clothianidin, the pesticide accused of killing honey bees. The determination was in response to a petition filed on March 20, 2012, by beekeepers, honey producers and several environmental and consumer organizations.

The petition (available at regulations, doc no. EPA-HQ-OPP-2012-0334-0002) claimed that the use of the neonicotinoid class of pesticides, of which clothianidin is one, coincided with mass die-offs of honey bee populations in the U.S. as the result of Colony Collapse Disorder. It reported that 90% of flowering plants require pollinators to reproduce and in agriculture, nearly a third of pollination is performed by honey bees. Pollination by bees is claimed to be needed for one-third of the American diet.

According to the petition, the neonicotinoids are used primarily as a seed treatment for corn, which is the largest single use of arable land in North America. The petition reported that except for a tiny fraction of organically produced corn, almost all of corn seed planted in America is coated with neonicotinoids, primarily Clothianidin and a related compound.

Beginning in the last decade, populations of honey bees have fallen precipitously. Colony Collapse Disorder was first documented in the U.S. in 2004. The petition reported that each winter since then, approximately one-third of the U.S. honey bee population has died off or disappeared. The first reported honey bee losses occurred immediately upon the widespread use of Clothianidin following its conditional registration by EPA in 2003. The petition claims that there is clear scientific evidence linking neonicotinoids to colony collapse.

In its letter of denial of suspension for imminent hazard (available at regulations, doc no.EPA-HQ-OPP-2012-0334-0006) , EPA announced it would now take public comment for 60 days on the petition’s request for cancellation of Clothianidin. However, EPA stated that at this time it does not believe the pesticide has caused or will cause significant reduction in populations of domestic bees, a significant decrease in honey production, serious effects on other agricultural systems as a result of decreases in pollination services or a reduction in pollination of wild plants in a way that may alter ecosystems.

The "leak" to the New York Times a month ago has left us guessing where New York is going with fracking. On June 13, the Times reported that the administration was pursuing a plan to limit hydraulic fracturing to counties along the border with Pennsylvania and to permit it only in communities that "express support" for fracking. Since the draft regulations had only provided for "consultation" by DEC with the municipalities permits are proposed, the possible change in the administration's position suggests they are considering following the Middlefield and Dryden decisions discussed in the previous post.

The proposal would limit hydrofracking to the deepest areas of Marcellus shale in the state, allegedly to provide a greater separation distance between the fracking and the shallower groundwater deposits used for drinking water. This rationale would conveniently limit fracking to the southern tier of the state, where reportedly about thirty towns have passed resolutions or taken other action to show their willingness to have fracking come to town. Under the proposal, fracking would be allowed "primarily" in Broome, Chemung, Chenango, Steuben and Tioga counties, and only where the town has shown support.

Although recognition of the right of municipalities to reject fracking is a positive step, an air of politics surrounds the proposal. A blog in the Huff Post Green claims that the proposal is an example of politics trumping science. Not only did the Environmental Working Group uncover DEC's practice of sending proposed regulations to industry representatives weeks in advance of releasing them to the public, but the dialogue that ensued between the agency and the industry clearly went beyond the cost impacts the agency must explore. One must wonder what role the industry is playing in shaping the new program while those of us not representing industry wait for the proposal.

The two court decisions upholding the right of municipalities to zone out high presssure, high volume hydrofracturing for natural gas, known as "fracking", have been appealed to the Appellate Division for the Third Department. The two appeals will most likely be heard together this winter and a decision issued by spring.

The Appellate Division decision will be pivotal. If the Appellate Division affirms the lower courts, an appeal to the Court of Appeals is not automatic. The industry and property owners would have to request leave of the Court to hear the appeal. Whether the Court of Appeals would take the case is difficult to assess. The lower court decisions relied heavily on Court of Appeals precedent in parallel mining cases. The Court could decide to let the lower court interpretation stand or it could create a new rule for natural gas drilling. If the Court hears the cases, we would probably not have a final decision until early 2014.

In the meantime, the rulings of the Middlefield and Dryden cases stand. New York State has not preempted a municipality's land use authority to decide where, if at all, fracking will be allowed. The state has also not preempted local jurisdiction over local roads or the right of local governments to tax fracking facilities under the Real Property Tax Law. Section 23-0303 of the Environmental Conservation Law does preempt local regulation of fracking operations, such as technical standards and operating procedures. In the words of these decisions, the state may determine "how" fracking will occur, but local governments may determine "where" it will occur.