Monday, February 27, 2012

Hydraulic fracturing policy battle waged along local fronts New York, Pa. apply contrasting approaches to home rule

A Marcellus well drilled in Susquehanna County

For almost four years, officials in the legislative and executive branches of New York state government have been engaged in the conflict over shale gas development. Last week, the public focus turned to the judicial branch, with two high-profile rulings in test cases before the state Supreme Court. In both cases, New York's low court upheld local bans on shale gas development –first in Dryden then in Middlefield. As these landmark cases work their way through the appeals process, governor Andrew Cuomo’s staff will be attempting to finalize the SGIES, the policy document intended to provide guidelines for DEC officials to begin issuing permits for high volume hydraulic fracturing. Meanwhile, lawmakers will continue to consider (pending the SGEIS outcome) a host of options and proposals of their own offered over the years to regulate high volume hydraulic fracturing in the state.

While the shale gas controversy spreads across the three branches of state government, there are dozens of low profile but equally important developments shaping up in town halls, from Albany to Buffalo. The outcome of the local governing process will have a critical role in defining the impact on shale gas development in decades to come in the northern sections of the Marcellus and Utica shales, which extend under Appalachia and well into upstate New York. While not all towns are pursuing outright bans, they are raising sticky questions about who will pay to regulate gas development. These questions are at the heart of substantial resistance to drilling in a state that has become a national example of the influence of the anti-fracking movement.

Earlier this month, Yates County legislators unanimously agreed to request state funding for increased workloads of local public health officials expected with gas well oversight. As reported by The Chronicle Express, local health officials will be the primary point of contact for health and water-related complaints related to drilling activities. Their duties will also involve educating the public about drilling, and overseeing testing and mitigation measures necessary to protect local water resources. Legislators told reporter Gwen Chamberlain that they expected additional resolutions to fund other costs in the planning and transportation departments related to shale gas.

The complaints about unfunded mandates related to the state’s developing policy are not new, and Penn Yan officials are not the only ones raising them. Municipal officials from all over the state documented similar complaints in comments and testimony submitted on the latest draft of the SGEIS. A person that knows this all to well is Stuart Gruskin. Gruskin, who works as an environmental policy consultant, was assistant DEC Commissioner under governor David Paterson’s administration. In that role, he was largely in charge of the initial two years of the policy review that brought about the first draft of the SGEIS. In his view, the state is in a good position to address the issues of local government control and funding before the final guidelines are issued.  “If there was ever a time to dedicate the resources to address these issues it's now,” Gruskin wrote me in a recent email. “It would be a good launching point to start talking about alternatives to the state being responsible.” Ideally, funding and solutions to problems, would come from “collaboration among local governments, industry, and stakeholders -- without the risk of the funding getting high-jacked for other state purposes.” That, he concluded, “will take some creative thinking as well as agreement” and success is dependent on “a high level of collaboration.”

Collaboration of stakeholders with diverse and sometimes competing interests to regulate a process as controversial as high volume fracturing in New York would indeed be an achievement; but then, that’s how our government is supposed to work. Some towns are dead against it, and others are for it. On this level, leaving the matter in the hands of local officials makes sense. But there are issue, including waste disposal and water consumption, that reach beyond any given locality and even state lines. Fracking waste – including brine and large volumes of chemical solutions -- produced in New York state, for example, would become another state’s problem, as New York lacks treatment plants, injection wells and policy to dispose of it.

Meanwhile Pennsylvania, with a history and culture of mineral extraction antithetical to New York's, continues to follow a much different path regarding shale gas policy.  Earlier this month, both houses of the Pennsylvania legislature restricted municipal zoning authority on drilling operations. Under the new law, municipalities have no control over well citing or hours of operation, and only limited control over setbacks. Most oil and gas operations, including wells, pipelines, and waste pits will be permitted uses in all districts. In return, lawmakers have allowed an impact fee for each well, roughly equivalent to a 1 percent to 3 percent tax on natural gas extraction. True to governor Tom Corbett’s policy, this keeps Pennsylvania as one of the least restrictive states in which to drill.

New York and Pennsylvania straddle some of the largest gas reserves in the world. While the geology is similar, their political and policy approaches could not differ more. In the context of history, future generations will surely be able to measure one against the other in terms of successes and failures.

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