NY fracking policy hinges on Health Department decision Evaluation on public health to come, timeline indefinite

The course of the contentious and unsettled policy debate on fracking in New York has just taken another twist. With shale gas permits on hold pending an environmental review now in its fifth year, Department of Environmental Conservation Commissioner Joseph Martens has asked the state’s health commissioner to assess whether the state has sufficiently covered the potential for health problems.

Martens cited two reasons: One has to do with health. The other is about lawyers:

Martens explained in a statement: “I want to make sure that we have done the most thorough review possible, especially when it comes to public health concerns. In addition, I want to ensure that the Department has the most legally defensible review so that when the Department issues its final determination on this matter, protracted litigation is avoided, whatever the outcome.”

New York state -- which sits over the Marcellus and Utica shale gas reserves -- has become the showcase of the national debate over the risks and merits of hydraulic fracturing and a related on-shore drilling boom. Martens and his predecessor at the DEC, Pete Grannis, have been in the thick of it. Now eyes will turn to New York State Health Commissioner Nirav Shah.

Permitting for shale gas was put on hold in the summer of 2008 so officials could better assess the environmental impact of the controversial process to extract natural gas from rock. The policy review, through a document called the Supplemental Generic Environmental Impact Statement, was expected to take a year, but it dragged on. During public hearings and sessions, the public, including industry, activists, landowners, unions, and local and national government officials, submitted more than 80,000 comments, which DEC officials must address before the document is finalized.

The scope of the review was originally environmental, but health advocates have questions regarding the short and long-term impact on public health from all aspects of shale gas development – not just fracking. Those questions, according to Martens, need to be evaluated by the Health Department to “ensure the strongest possible legal position for the Department given the near certainty of litigation, whether the Department permits hydrofracking or not.”

Regardless of the decision to frack or not to frack, the state is girding itself for lawsuits. Landowners, supported by the industry, have threatened to challenge the state if the policy prohibits them from developing their mineral rights. Others are expected to sue if they feel the policy puts their health and safety at risk. Lawsuits have already been filed on other grounds, with local municipalities challenging the state and the industry’s exclusive control over citing of wells – an issue known as Home Rule.

The decision by Governor Andrew Cuomo’s administration now puts Shah’s health department, which so far has taken a low-profile role in the state’s fracking review, in the hot seat. A diverse collection of mainstream medical and health agencies have supported the continuation of New York’s fracking moratorium until health impacts can be 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. Just before Labor Day, Martens and Shah granted an audience to representatives of several influential environmental groups, including the Sierra Club, Environmental Advocates, the National Resources Defense Council, the Environmental Defense Fund, and Riverkeepers. They asked for an independent Health Impact Assessment that 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.

In his statement today, Martens made it clear that the state would be making the evaluation, not a third party as requested by the delegation of environmental groups:

I believe deferring to an outside group or entity would be an inappropriate delegation of a governmental responsibility. Government is the public's independent reviewer: that is the essence of the current process. To suggest private interests or academic experts bring more independence to the process than government is exactly wrong. Many experts in this field have an opinion – pro or con- which could influence the process. Nor could one ever be sure that there weren't potential conflicts of interest with outside consultants if they were to actually direct the outcome. It is the government's responsibility to ensure objectivity and a review directed by DEC and the Department of Health is without bias.

Update added Sept. 21, 12:15 p.m.
Not surprisingly, reaction to the news was divided.

Kate Sinding, a senior attorney for the National Resources Defense Council, was part of the group that met with Shah and Martens before Labor Day. Sinding was “cautiously happy” about Marten’s announcement, and the news that Shah would set up an independent panel to advise the agency. Sinding said she expected that stakeholders will be consulted on the makeup of the panel, which will play a critical role. “There are some leading names in the field,” she said. “We’ll have to see what Dr. Shah sets up.”

Leaders of some of the grass roots environmental groups were less happy with the decision to keep the review in Cuomo’s administrative house. Sandra Steingraber, co-founder New Yorkers Against Fracking, said the Health Department’s involvement has been lacking since the DEC’s review began in 2008, and she suspects the DOH has now been called on to “rubber stamp” the DEC’s findings. “Nothing has roused the DOH from its unconcerned slumber,” she said. “The gas-industry-entangled DEC and its silent brother, the DOH do not inspire confidence.”

Responses from the industry were also mixed. Tom West, an industry lawyer, said a health review was unnecessary, because the state would effectively regulate emissions and releases into the environment. “You don’t have a public health concern because there is no impact,” he said. Brad Gill, executive director of the Independent Oil and Gas Association of New York, said the agency supports the commissioner’s decision to keep the process under the rubric of the DEC rather than granting the demands for an independent study. “Environmental regulations, properly enforced and adhered to, protect human health, as well as all natural resources.”