Record clearly shows Cuomo’s ambivalence on fracking NY policy dilemma: John Wayne or Erin Brockovich?

New York policy makers are reportedly putting the finishing touches on guidelines that will give drillers access to New York’s share of some of the world’s biggest natural gas reserves. The final version of the Supplemental Generic Environmental Impact Statement (SGEIS) is going to be released in coming weeks. We know that because Governor Andrew Cuomo told us we can expect it by summer’s end… Unless it comes after that.

That sounds hazy, because it is. The future of shale gas development in New York depends on the status of the policy document that has been in a state of incompletion and transition since Cuomo’s predecessor, Governor David Paterson, ordered it more than four years ago. Deadlines have come and gone, while expectations and related tensions have grown more intense.

To predict the future, it’s worth looking at the past, and here the record shows ambivalence in Cuomo’s approach to permitting the controversial method of high volume hydraulic fracturing to extract gas from bedrock. Soon after he took office in 2011, Cuomo appeared to be ready to move ahead by setting the first hard deadline for the release of the second draft of the SGEIS: July 1, 2011. When the date arrived, his DEC -- working under an avalanche of public criticism aimed at the original drafts of the plan that still needed to be processed and addressed -- released a partially completed version. DEC Commissioner Joseph Martens promised the rest of the plan would be shortly forthcoming. He also announced the formation of a panel charged with finding revenue to fund the added regulatory wherewithal the DEC would need to oversee the industry. At that time, July 2, 2011, Martens told the press that permits could go out by early 2012.

As they say in storybooks, winter turned to spring, and spring to summer. The second version of the plan was completed and sent back to the drawing board with another flood of public criticism. Meanwhile the advisory panel that Martens assembled remained inexplicably inactive. Then, in June, the Cuomo administration leaked information to the New York Times in a story widely characterized as a “trial balloon.” Times reporter Danny Hakim, citing unnamed sources, reported that the state DEC would begin issuing shale gas permits within designated communities in the Southern Tier, over the most promising part of the Marcellus, as part of a three-year pilot project. Permitting could then proceed elsewhere when fracking was deemed safe. (I have since reported more details of the plan here.)

Last month, Cuomo told WXXI’s Karen DeWitt that the plan would be finalized “later this summer.” If you count the end of summer as Labor Day, the WXXI report squares with a report by Times Union columnist Fred LeBron, who, like Hakim, also cited unnamed sources to convey the news that Cuomo would be issuing a plan “before Labor Day.” If you count the end of summer as Sept. 21, then this squares with an August 19 CBS report, also citing unnamed sources, that the final SGEIS would arrive “after Labor Day.”

In my assessment, “after Labor Day” can mean a lot of things, and the vagueness of the report does not inspire confidence. Neither do my own unnamed sources, who once told me to be on the lookout for the SGEIS before Labor Day, and now are telling me it will likely be after Labor Day. I don’t count these sources as unreliable. I think they reflect the uncertainty of Cuomo himself, compounded by pressure on the DEC, hobbled by a lack of resources, to produce an air-tight review that is bound to face legal challenges.

The prolonged ambiguity of Cuomo’s approach to shale gas is telling, and a marked contrast to the approach from governors of neighboring states that also sit over substantial shale gas reserves. Pennsylvania governor Tom Corbett and Ohio governor John Kasich have touted the industry as a primary economic engine. Unlike his counterparts in Ohio and Pennsylvania, Cuomo has largely avoided the topic of shale gas, much less used it to stoke political support in his campaign for office in 2010, or anytime since.

When Cuomo talks about shale gas now, if at all, it’s in the context of allowing it in communities that want it, and banning it in communities that don’t. It’s a concept known as “home rule,” and it runs counter to the idea that the state, not towns, is responsible for overseeing the industry. He seldom brings it up publically unless pressed by reporters. He told DeWitt in July that home rule would have to be a consideration and added, cryptically, “if you go down this road at all.”

John Wayne as Red Adair

For a look at the differences between New York and neighboring states (at the risk of oversimplification) I consider two cultural icons: Red Adair and Erin Brockovich. For some, the culture and history of on-shore drilling-- personified by wildcaters, roughnecks, and risk takers—is infused with romantic appeal. Think John Wayne, who famously portrayed Red Adair in Hellfighters – an old-fashioned tale of macho folk heroism and adventure overcoming sensational danger with a happily-ever-after ending. It’s a naively simple tale from a bygone era that lingers deep in the American psyche. Republican leadership in both Pennsylvania and Ohio, motivated by enticement of wealth rather than fear of risks, are gung ho over shale gas development as a kind of rebirth of the old American economy. I put them in the John Wayne camp.

Roberts as Erin Brokovich

Fitting the cowboyesque drilling culture industry into New York, by comparison, has been an awkward political exercise from the get go. Full-scale development of the Marcellus and Utica shales would involve, at the very least, unprecedented land-use transformation in areas yet unblemished by scars of mineral extraction. Under current exemptions from federal hazardous waste and disclosure laws, it would likely carry a much higher price of unregulated industrialization. Here, Erin Brokovich, (a non-fictional character played by Julia Roberts) would be an apt personification of the attitudes shaping the anti-fracking movement. In the movie named after the heroine, Brokovich is an impoverished and multi-tasking single mother fighting the forces of greed and duplicity to uncover corporate exploitation – specifically the clandestine and catastrophic disposal of toxic waste -- at the expense of the common folk. (Brockovich, like Adair, is a plain-speaking folk hero with a knack for cutting through bureaucratic BS. Like Hellfighters, Erin Brockovich is based on a true story, and it too has a happily-ever-after ending.)

Of course, the dynamics of shale gas politics is far more complex than that. New York state has a history of land preservation in the Finger Lakes, Catskills, and Adirondacks (among other places) and an economy and politics heavily influenced by diverse downstate interests, not mineral extraction. Add to this the anti-fracking movement, a natural gas market glut leading to low prices, and a recent Siena poll showing New Yorkers split on shale gas development (with many undecided), and you have the conditions for political malaise in the governor’s office. You don’t have to read between the lines to see that the uncertainty that has held back New York’s fracking commitment from the beginning is unlikely to disappear once the SGEIS is released.

Predicting the outcome of the SGEIS also involves reading the positions of a diverse lot of administrators who serve as the governor’s advisors. Their backgrounds do not suggest a simple unifying view on the shale gas question. Before becoming head of the DEC, Martens was an environmental activist and land-preservationists who held leadership positions with both Catskill Mountain Keeper and the Open Space Institute – organizations that hold missions contrary to shale gas development. Cuomo’s Deputy Secretary for Energy and the Environment, Robert Hallman, has said the administration sees natural gas as a step toward cleaner energy. Larry Schwartz, Cuomo’s secretary, played a role in the shale gas discussion when he served as Paterson’ secretary. He (unsuccessfully) advocated a speedy resolution to the SGEIS draft in 2009, and he fired DEC commissioner Peter Grannis in 2010 after a memo was leaked from Grannis that suggested the DEC, decimated by cuts, would lack the ability to effectively regulate.

Cuomo undoubtedly has been thoroughly briefed on the SGEIS, and he has developed a plan now undergoing finishing touches to be released in coming weeks or maybe months. But I’m not sure laying the groundwork that could turn New York into a major mineral extraction state – with unknown environmental consequences -- currently fits his political comfort zone. I have said in a previous post that if he is serious about keeping the option open for a presidential bid, he will not, in the current national political climate at least, want to be labeled by opponents as the guy who closed the door on domestic energy production. Whenever the press release comes from the DEC announcing the release of the SGEIS, I have a feeling that it will include contingencies factored into a political calculation that will inevitably buy New York state more time to test the political winds locally and nationally.