DEC meeting with enviros suggests SGEIS unfinished Cuomo's staff wrestles with fracking health questions

Governor Andrew Cuomo’s top health and environmental administrators invited members of five environmental groups to Albany recently to discuss the state’s developing policy on fracking. In contrast to a raucous demonstration by grass roots groups a day prior, the meeting on August 28 at the state capitol between heads of state and members of the country’s most influential environmental groups was held quietly and privately, minus media or press statements. A delegation representing the Sierra Club, Environmental Advocates, the National Resources Defense Council, the Environmental Defense Fund, and Riverkeepers met with DEC Commissioner Joseph Martens and Department of Health Commissioner Nirav R. Shah, and their aides. There was no formal agenda, according to those who attended the meeting. Rather, the commissioners were seeking the groups’ input on health considerations in the state’s regulatory overhaul on which the future of shale gas development in New York is pending.

For those wondering about the status of shale gas development in New York, the meeting is the latest sign that the Cuomo administration is not yet ready to finalize its policy, despite reports to the contrary in the mainstream press.

Members of the groups told Shah and Martens that the most recent draft of the state’s policy – the Supplemental Generic Environmental Impact Statement – falls short of adequately addressing public health considerations that should be taken into account with full-scale gas development. While the SGEIS details economic gains that communities can expect from shale gas development, critics feel it has not delved far enough into liabilities – many of them related to public health –that a gas drilling region can expect over time. In addition to environmental groups, a diverse collection of mainstream medical and health agencies are seeking the continuation of New York’s moratorium on high volume hydraulic fracturing until both impacts of health and environment can be better documented. The groups include New York State Association of County Health Officials, the American Academy of Pediatrics, the New York State Nurses Association, and the Medical Society of the State of New York.

The simple fact that the environmental delegation was summoned to meet with the commissioners of the state’s health and environmental agencies is another sign of the governor’s ambivalence (discussed in a previous post) amid growing pressure on the administration. Grass roots groups have been protesting routinely in the halls of the Capitol, and a bevy of protestors have also flanked Cuomo during his public appearances in recent months, including a visit to the state fair on Labor Day, and an event in August called a Yogurt Summit to promote upstate dairy interests. Pro drilling groups have also been active, but not as visibly or as routinely as the opposition. More about that in a bit.

Unlike the grass roots groups, which are seeking a ban, the mainstream environmental interests are generally pushing for a moratorium to allow time to construct a more comprehensive regulatory framework to handle fracking – the controversial process to extract gas from bedrock which has enabled shale gas development. Groups such as the Sierra Club, NRDC, and EDF have met with environmental regulators in briefings about specific policy points, including proposals to mandate water monitoring wells at each gas well site, and to outlaw gas well completion prior to pipeline construction. It’s worth noting here that some drillers have already slowed their rate of expansion in Pennsylvania amid a market glut and storage limitations, and that requirements along these lines would discourage companies to aggressively expand operations into New York without a significant rise in demand and corresponding prices.

The state’s review of shale gas development, now in its fifth year, has focused on the environmental impacts of high volume hydraulic fracturing, ranging from water depletion to waste production. The August 28th meeting --first reported on an August 31 post by New York Times reporter Mireya Navarro on her blog, Green -- is the latest call for an independent assessment of health impacts. Prior to that, the New York State Association of County Health Officials called for an “expert, independent, and evidence-based study of potential public health impacts, preventive approaches to mitigate human health risks, and estimated related costs prior to lifting the moratorium on permits.” That request was included in a January report prepared for an advisory panel commissioned by Martens to help evaluate the resources needed to allow fracking. The report references several studies assessing impacts from shale gas development in other areas, including the Battlement Mesa Health Impact Assessment, by the Colorado School of Public Health, which takes into account issues ranging from volatile organic compounds from drilling operations posing risks of respiratory, skin and eye ailments, to potential impacts on women and children from repeated benzene exposures. The county health department assessment also references, among others, a report by Duke University’s Nicholas Institute for Environmental Policy Solutions that cites “adverse effects” on communities related to reused drilling wastewater and “the availability and quality of locally grown foods, recreational sites, and jobs.”

At the August 28th meeting in Albany, the delegation of environmental groups asked for an independently conducted health review of shale gas development along the lines of what was proposed by the association of county health officials. Although details were not discussed, it could potentially take into account chemical exposure risks from air and water emissions, industrial accidents, community stresses related to noise, traffic, housing, and population changes, as well as considering the resources necessary to manage them.

The commissioners seemed receptive to the ideas, according to participants.

“No commitments were made, but I think they heard our concerns and are taking them very seriously,” said Kate Sinding, a senior attorney with the NRDC who attended the meeting. Sinding added that she was satisfied with the review process so far. “This is already a success story. This is a policy review with a level of consideration and deliberation that we have not seen anywhere else.”

While administrators may be willing to beef up their review of health consequences of shale gas development, it’s unclear what form the review would take. A formally sanctioned review – called a Health Impact Assessment – would require a preliminary plan to outline both the scope of the initiative and the resources to pay for it. The multi-step process would be open to hearings and public review that could add years to the overall review process. The administration could also work on a less formal plan to addresses health concerns with existing tools and resources and tack them on to the SGEIS, a document that already exceeds 1,500 pages.

Regardless, the simple fact that a health review is on the table at this point suggests a final decision of fracking in New York is not imminent.

Other factors loom. The Democratic controlled Assembly has already passed a bill legislating a health impact assessment as part of the state’s review, and in the absence of considerable and unexpected change in the Assembly composition this November, it will likely have the votes to do so again next session. The bill went no where in the Senate, which is controlled by Republican’s by a thin margin. But Republican control of the Senate is more vulnerable than the Democrats’ control of the Assembly, and Cuomo might be anticipating various permutations of how the issue could play out in the next Legislature.

While Cuomo has been vague about the status of the SGEIS and noncommittal about its release date, reports in the mainstream press have fueled expectations that the document would be released by Labor Day or shortly after. The meeting between the top staff and the environmental groups is hard to reconcile with expectations reported in the mainstream press -- most recently by CBS News and Fred Lebrun of the Albany Times Union – that we could expect a final SGEIS by the end of summer to open the door for shale gas exploration in New York. Now, as mid-September approaches, advocates both for and against drilling are reporting that any decisions may be pushed off until after elections. Days after the commissioners of the DOH and DEC met with the environmental groups, the Joint Landowners Coalition of New York reported on its website that the governor was considering postponing a decision:

Despite all of the positive news about the potential release of the final SGEIS, we have been advised by credible sources that the Governor has been asked to delay the release of the SGEIS until after the November elections.

Signs of a delay also were reported by those in the anti-fracking camp.

“It seems to be on a slower track with a willingness to look at new issues,” said Rob Moore, executive director of Environmental Advocates, summing up a view that I heard from stakeholders involved with recent talks with the DEC.

Predictably, prospects of a delay have been praised in the anti-fracking camp and criticized by groups of landowners eager to lease their land to gas companies. Tim Whitesell is a landowner and supervisor of the Town of Binghamton – an area just north of the Pennsylvania border that sits over rich shale gas reserves, including the Marcellus and the Utica. Whitesell and 21 other town supervisors in this gas rich region sent a letter to Cuomo on Wednesday urging him “to direct the DEC to move forward as soon as possible with rules and regulations governing the process and to begin permitting.” Last week Whitesell told AP reporter Mary Esch “It’s very frustrating that we see this economic boom just south of us in Pennsylvania and we’re not able to take part in it.”

Some municipalities, including the Town of Binghamton, have passed resolutions favoring drilling, while others, such as the City of Binghamton, have passed resolutions opposing it. The issue playing out in local communities is legally known as Home Rule. Cuomo has said that when gas drilling begins, his administration would begin permitting in areas that want it and not in areas that oppose it; but the approach is rife with legal implications – about where and how the state can intervene to allow mineral extraction in some areas and not others -- that go well beyond the politics of the matter.

While proponents may be discouraged by Cuomo’s lack of commitment to shale gas development, they can take heart in President Obama’s bullish attitude on natural gas development nationally, expressed most recently during the president’s Convention speech. But in the short term, at least, there are market factors at work against the industry that transcend politics. A glut has driven prices down and dampened the pace of the rush that was going full bore in 2008, when gas companies were offering between $3,000 and $5,000 dollars an acre to lease land up front, plus royalties of 15 percent of more. Now the value of the mineral resources has fallen, raising questions whether shale gas extraction in New York is even economically viable. There is important and controversial work ongoing to develop infrastructure, however, including converting salt mines on the west side of Seneca Lake into a facility to warehouse surplus gas coming on line in Pennsylvania and Ohio until prices rise. In the meantime, Obama’s speech suggests the federal government will do what it can to support expanding markets for domestic natural gas, which would drive up prices and incentives to drill. Expect nothing less from a Mitt Romney administration, and probably much more in the way of deregulating the industry to lower the cost of extraction.