New York state health officials expect to have terms nailed down within two weeks for several independent experts to review the state’s assessment of health risks associated with shale gas development.
Bill Schwarz, director of Public Affairs for the state Health Department, said today that the review would begin when contract terms were finalized with reviewers – a housekeeping task expected to be completed within a “week or two at the most.” The state will work with three or four experts (Schwarz was unsure of the final number) to review draft of a policy to allow permitting for shale gas development and the controversial practice of high volume hydraulic fracturing in New York.
DEC Commissioner Joseph Martens announced the plan for additional review five weeks ago with mounting pressure from environmental groups pushing for a more complete record of how fracking might affect public health. Activists from both grass roots and mainstream environmental organizations are urging the state to quantify a range of risks such as chemical exposure from air and water emissions, industrial accidents, community stresses related to noise, traffic, housing, and demographic changes, as well as considering resources necessary to manage them.
The most recent draft of the state’s shale gas policy, called the Supplemental Generic Environmental Impact Statement (SGEIS), has not yet been publically released. Initial drafts, released in 2009 and 2011, met with extensive public criticism. (There was no draft released in 2010, as stated in the original version of this post.) During public hearings and sessions, industry representatives, activists, landowners, unions, health professionals, and local and national government officials submitted more than 80,000 comments, all of which DEC staff and consultants must address before the SGEIS is finalized. The original document focused mostly on environmental concerns. The current (unreleased) draft also addresses health issues raised in the public comment period, according to officials.
The plan to enlist a panel of health experts to review the SGEIS was a matter of due diligence, according to Martens. “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,” he said in a statement announcing the review last month.
New York state -- which sits over the Marcellus and Utica shale reserves -- has become the showcase of the national debate over the risks and merits of hydraulic fracturing and a related on-shore drilling boom. Until last month, most of the focus has been on Martens and DEC. Now DOH Commissioner Nirav Shah has an influential voice in the outcome. His department is in charge with choosing the reviewers and then ultimately recommending whether the DEC is ready to issue shale gas permits or has more work to do,
More information about the health review, including its scope, timeline, and the names of reviewers, will be released when the contracts are signed. Schwarz characterized the work as a “review of the review” that will essentially tell officials whether the state’s draft document adequately accounts for and mitigates health risks associated with fracking, or whether more work needs to be done and if so what recommendations should be followed.
The state is developing regulations for shale gas concurrently with its environmental review. Officials face a Nov. 29 deadline – a year from the last public hearing -- to complete the review or redefine and restart the rulemaking process. That would mean reopening the process to public hearings and the potential for another barrage of criticism. As recently as last week, Martens offered the possibility that the health review could be completed by Nov. 29 even though details of the plan have not been finalized. Under certain scenarios, that could technically allow permitting to begin by the end of the year, although other factors could discourage it, including administrative hang-ups in the technically and legally dense process, or political pressure after the elections.
The shale gas controversy locally and nationally is defined by influential stakeholders and interest groups allied with bitterly opposing positions. Anti-fracking activists in New York state are seeking a sanctioned and independent Health Impact Assessment, apart from the SGEIS, with its own scope and public review process. Landowners, supported by the industry, have threatened to challenge the state on Constitutional grounds if policy prohibits them from developing their mineral rights. Others are expected to sue if they feel the policy jeopardizes their health and wellbeing. 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.
While the Cuomo administration works through various legal and technical considerations of crafting shale gas policy, it must also be ready for a possible shift in political winds on November 6. If Republicans lose the Senate, then the Legislature would be in a position to mandate more rigorous standards that could effectively block or delay shale gas development. If Republicans hold the Senate, then it is unlikely the Legislature could pass bills to significantly delay drilling.
Friday, October 26, 2012
Saturday, October 20, 2012
Home Rule cases advance in New York, Pennsylvania
Regardless, the industry is facing a legal offensive from the opposite direction – local zoning boards. This has been a notable week for industry appeals of rulings in New York and Pennsylvania that leave the fate of oil and gas drilling operations to municipal officials.
In New York, industry lawyer Tom West filed briefs on Monday appealing two separate lower court decisions upholding ordinances in the towns of Dryden and Middlefield to ban shale gas development. Both Dryden, in the Finger Lakes area, and Middlefield, in the Catskills, are places where support has grown for the anti-fracking movement. The crux of the appeal concerns whether the New York State Oil & Gas Solution Mining Law is similar in intention to the Mined Land Reclamation Law, which recognizes local municipalities’ rights to apply zoning ordinances for the mining industry. In separate decisions, the state’s lower courts ruled that the answer is yes. In the appeals, (which you can find here) attorney West argues for Norse Energy (representing industry) and for Cooperstown Holstein Corporation (representing landowners) that the intention of the two laws are different, and a preemption from state law that subjects mining to local control does not apply to drilling.
The lower court, citing precedent of the Mined Land Reclamation Law, determined that state’s regulatory authority applies only to how an operation is conducted, not where or if it is allowed. Therefore a ban by a municipality on the grounds of incompatible land use is permissible. The appeal argues that, unlike the mining law, the oil and gas law specifically pre-empts local law not only in regard to how operations are carried out, but where they are allowed. West said he expects the case will be scheduled in the court’s February session, with a decision six to eight weeks after the oral argument.
The degree to which local government has a right to control permitting decisions within its borders– known as Home Rule – is also playing out in a landmark case that has reached Pennsylvania’s high court. The crux of the case in the Keystone State involves the constitutionality of Act 13, a law supported by Governor Tom Corbett and passed by the Republican Controlled General Assembly early this year to reinforce the state’s exclusive authority over where and how shale gas is developed. Shale gas development in particular benefits from uniformity and predictability in policy to optimally build out infrastructure to tap reserves underlying large geographical areas over time. Act 13 was designed to support development by taking away uncertainty that comes with local municipalities enacting different and contrary decisions about land use.
The constitutionality of Act 13 was successfully challenged by a group of municipalities in Washington County. The Commonwealth Court ruled 4-3 in July that the state overstepped its authority by allowing drilling and related industrially intense activities in residential areas.
As reported by Timothy Puko of Tribe Live, about 130 people crowded into the courtroom in Pittsburg Wednesday to hear the arguments. (Note, the location in my original post was incorrect.) Many of them carried signs and banners that they had to leave at the door. At one point, the atmosphere became so boisterous that Chief Justice Ronald D. Castille threatened to evict spectators.
A panel of six (elected) judges – three Republicans and three Democrats -- heard the case. According to Puke’s report, several of the judges posed questions or made statements that appeared unsympathetic to the state’s case. While Puko explained that critical questioning is typical and not always an indication of how judges rule, some legal observers noted these questions seem to represent something more. According to Puko’s report:
Justice Max Baer told the state’s attorney, Matthew Haverstick , that his argument was “scary” to laymen, families and homeowners. Justice Seamus P. McCaffery of Philadelphia asked the attorney about “a private citizen’s right to have a quiet residential community.”The Commonwealth ruling favoring Home Rule would stand if the verdict is tied. Judges gave no indication of when they would rule. In the meantime, policy governing the future of onshore drilling will for years remain very much a work in progress involving all three branches of government, locally and nationally. Regardless of how you feel about the risks and rewards of onshore drilling compared to developing other energy sources, the stakes offer yet anther reason to vote on Nov. 6.
… Court experts were struck by how pointed the two justices’ statements sometimes were, going beyond typical questions.
“My reading of the (rule) is that Pennsylvania’s residential communities can now be turned into industrial communities where tractor-trailer traffic is running all along the streets,” McCaffery said at one point.
The justices are not inclined to make statements so far off from their eventual ruling that it would disappoint voters, said Duquesne University law professor Bruce Ledewitz.
“I don’t think they were just posing questions. I think they were posing deep-seated concerns,” he said. “It’s not just academic for them. They have to face the voters in the future.”
Wednesday, October 17, 2012
Obama’s EPA Fracking study comes due at critical time Assessment of Bush-era policy will delve beyond rhetoric
Last night’s presidential debate demonstrated that both candidates are big on the promise of Big Energy. Barack Obama and Mitt Romney strove to outdo one another in articulating support for on-shore drilling and mineral extraction to create jobs and reduce dependence abroad.
So how would the prospects of shale gas exploration and development actually fare under Romney compared to Obama? The most immediate and tangible test is an EPA review now underway on the impact of hydraulic fracturing on groundwater. The study, commissioned by Congress in 2010, is reassessing a finding by the George W. Bush administration that high volume hydraulic fracturing is harmless. It’s a claim that Bush and vice president Dick Cheney used to justify exempting the industry from the Clean Drinking Water Act in a provision infamously labeled by critics as the Haliburton Loophole. If that exemption is repealed, it will essentially bring fracking – the impetus of domestic petroleum boom -- under federal regulation.
The timing is critical. A preliminary report has been promised for “late 2012,” but there is little reason to expect it – and its potentially boat-rocking ramifications - prior to election day. In the meantime, Obama has been a champion of on-shore drilling and high volume hydraulic fracturing for four years while his EPA has treaded lightly in places where concerns about pollution have gotten national attention. One of those places is Dimock, Pennsylvania. After six months of testing earlier this year, the EPA concluded that levels of pollution in five of the wells – roughly 8 percent -- were high enough to pose health risks. But because the drilling companies had offered residents treatment systems to mitigate risks of consuming the contaminants, including arsenic, barium, manganese, and methane, the agency ended its investigation with a statement that “no further action” was required. (The Centers for Disease Control is reviewing the EPA results and is planning to issue its own report at a time to be determines, although no press statements have been released and information is unavailable on the CDC website.)
Based on presidential campaign rhetoric, drilling proponents have plenty to be encouraged about, while good news is scant for those counting on the federal government to get tough on drilling-related pollution. In last night’s debate, as in the past, Obama talked about the abundance of shale gas reserves and related economic promise that he characterized as a “priority” in an “all of the above” energy strategy that also gives nods to the prospects of power from ethanol, solar, and wind. He hit the obligatory themes of jobs and opportunity associated with the petroleum and coal industres with no mention of their risks or limitations. He touted pipeline construction under his tenure “--enough to wrap around the world--” while passing on a chance offered by Romney to elaborate on his decision – celebrated among environmentalists -- to put the brakes on the controversial Keystone pipeline to import oil from Canada.
Obama’s approach, of course, was intended to disarm Romney’s efforts – and that of the Tea Party right -- to paint the president as a liberal obstructionist pandering to tree-hugging interests. Clearly determined to slam the door on that attack, Obama steered clear of any mention of risks associated with fossil fuel extraction, global warming, or other issues central to his environmentally-minded voting block.
That’s because this is now a contest for the undecided mainstream, and in the heat of this particular debate, it was clear that both candidates judged the country’s economic issues to be weighing more heavily on voters minds than environmental concerns. The spoken and unspoken message from both sides: as long as energy – from any source-- is produced domestically, it’s good. Policies that discourage domestic energy production are bad. (When Romney attacked Obama for unfriendly coal policy, Obama accused Romney of vowing to shut down a coal-fired power plant when he was governor of Massachusetts. Drilling on federal land was also cast in the positive.) But how will the reality differ from the rhetoric? While Romney and Obama were in a race to embrace the petroleum industry on national TV– their policies will undoubtedly be influenced by their EPA chiefs.
Romney has painted the federal government as an enemy of the people, and he is fond of pointing to the EPA as a prime example. The agency is not interested in the health and welfare of the people, according to Romney’s rhetoric. Its main objective is to obstruct American Enterprise wherever possible. (Or in his words during one primary: a “tool in the hands of the president to crush the private enterprise system, to crush our ability to have energy.”) It would be hard to imagine that the EPA study on fracking would stand a chance of completion under a Romney presidency.
If Obama is elected, you can expect the EPA to finish its work, which will carry the stamp of peer review and be the most rigorous federal review of fracking to date. If the EPA finds that fracking does carry significant threats to groundwater, the question remains whether Obama will reign in attempts to close the Haliburton Loophole, or establish any type of federal oversight for the shale gas industry. Obama, while liberal on social policies, has been more conservative on environmental policy. Is there any reason to expect him to change in a second term? A lot depends on the pressure he faces from Congress, and the state of the economy.
So how would the prospects of shale gas exploration and development actually fare under Romney compared to Obama? The most immediate and tangible test is an EPA review now underway on the impact of hydraulic fracturing on groundwater. The study, commissioned by Congress in 2010, is reassessing a finding by the George W. Bush administration that high volume hydraulic fracturing is harmless. It’s a claim that Bush and vice president Dick Cheney used to justify exempting the industry from the Clean Drinking Water Act in a provision infamously labeled by critics as the Haliburton Loophole. If that exemption is repealed, it will essentially bring fracking – the impetus of domestic petroleum boom -- under federal regulation.
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| EPA technicians collect samples in Dimock. PHOTO JAMES PITARRESI |
Based on presidential campaign rhetoric, drilling proponents have plenty to be encouraged about, while good news is scant for those counting on the federal government to get tough on drilling-related pollution. In last night’s debate, as in the past, Obama talked about the abundance of shale gas reserves and related economic promise that he characterized as a “priority” in an “all of the above” energy strategy that also gives nods to the prospects of power from ethanol, solar, and wind. He hit the obligatory themes of jobs and opportunity associated with the petroleum and coal industres with no mention of their risks or limitations. He touted pipeline construction under his tenure “--enough to wrap around the world--” while passing on a chance offered by Romney to elaborate on his decision – celebrated among environmentalists -- to put the brakes on the controversial Keystone pipeline to import oil from Canada.
Obama’s approach, of course, was intended to disarm Romney’s efforts – and that of the Tea Party right -- to paint the president as a liberal obstructionist pandering to tree-hugging interests. Clearly determined to slam the door on that attack, Obama steered clear of any mention of risks associated with fossil fuel extraction, global warming, or other issues central to his environmentally-minded voting block.
That’s because this is now a contest for the undecided mainstream, and in the heat of this particular debate, it was clear that both candidates judged the country’s economic issues to be weighing more heavily on voters minds than environmental concerns. The spoken and unspoken message from both sides: as long as energy – from any source-- is produced domestically, it’s good. Policies that discourage domestic energy production are bad. (When Romney attacked Obama for unfriendly coal policy, Obama accused Romney of vowing to shut down a coal-fired power plant when he was governor of Massachusetts. Drilling on federal land was also cast in the positive.) But how will the reality differ from the rhetoric? While Romney and Obama were in a race to embrace the petroleum industry on national TV– their policies will undoubtedly be influenced by their EPA chiefs.
Romney has painted the federal government as an enemy of the people, and he is fond of pointing to the EPA as a prime example. The agency is not interested in the health and welfare of the people, according to Romney’s rhetoric. Its main objective is to obstruct American Enterprise wherever possible. (Or in his words during one primary: a “tool in the hands of the president to crush the private enterprise system, to crush our ability to have energy.”) It would be hard to imagine that the EPA study on fracking would stand a chance of completion under a Romney presidency.
If Obama is elected, you can expect the EPA to finish its work, which will carry the stamp of peer review and be the most rigorous federal review of fracking to date. If the EPA finds that fracking does carry significant threats to groundwater, the question remains whether Obama will reign in attempts to close the Haliburton Loophole, or establish any type of federal oversight for the shale gas industry. Obama, while liberal on social policies, has been more conservative on environmental policy. Is there any reason to expect him to change in a second term? A lot depends on the pressure he faces from Congress, and the state of the economy.
Tuesday, October 9, 2012
Houston driller begins New York shale gas exploration Marcellus test well sunk in Tioga County woods
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Wetterling Well in Tioga County, NY
PHOTO JAMES PITARRESI
PitarresiPhoto@gmail.com |
Carrizo Oil and Gas began drilling the Wetterling Well this week in the town of Owego. Following tips from local residents, area journalist Sue Heavenrich was the first to report the endeavor on her blog, The Marcellus Effect. Heavenrich consulted permitting records and found that on May 17 Carrizo applied for a vertical Marcellus well on a 43-acre unit off McHenry Road, several miles northeast of the village of Owego. The company received approval from the state Department of Environmental Conservation on August 9. Conspicuous signs of drilling, including truck traffic and the glow of stadium lights in the woods were reported by locals several days ago.
Carrizo is a publically traded energy company that specializes in horizontal drilling to produce oil and gas in shale plays, with stakes in the Eagle Ford Shale in South Texas, the Barnett Shale in North Texas, the Niobrara Formation in Colorado, and the Utica Shale in Eastern Ohio in addition to the Marcellus in New York and Pennsylvania. It’s also developing oil from the Huntington Field in the United Kingdom North Sea.
I followed up this week with a call to Carrizo, and was connected to Richard Hunter, vice president of investor relations. He confirmed that the well was an exploratory venture to test the viability of Marcellus in that part of New York. But he would not elaborate. “This really is a tight hole,” Hunter told me, using the industry vernacular for the status of an exploratory well kept under wraps for competitive reasons. “It’s a look-and-see well. Once we see what’s there, that will affect our thinking about what we will be doing in the future.”
While New York state officials are not issuing permits for horizontal shale gas wells pending a review of environmental and health consequences, there is no policy that prevents vertical wells into shale pay zones. Vertical wells are not an economically efficient means to exploit shale gas because they can't draw from a large enough area in the thin but vast shale mantels. But they are effective tools for exploration, and later they can be turned into horizontal wells, thereby giving drillers a head start on development in a given area.
Keeping Marcellus exploration secret in New York – even in a remote wooded area -- is like trying to hide a rhinoceros in a petting zoo. Truck traffic, stadium lights, and permitting records aside, the operation defies stealth for many reasons.
Timing: The well comes as awareness intensifies with a debate over the fate of shale gas exploration in New York. The Empire State is the strategic center of a national anti-fracking movement fueled by unanswered questions about health and environmental ramifications of high volume hydraulic fracturing and shale gas development in general. Permitting of horizontal wells and high volume hydraulic fracturing has been on hold for four and a half years while officials try to get their regulatory house in order to manage environmental consequences, ranging from water and air emissions to expected demographic changes related to the boom-bust cycle historically accompanying mineral extraction. The state’s review – spelled out in a document called the Supplemental Generic Environmental Impact Statement (SGEIS)– has undergone multiple drafts since 2008 amid widespread public criticism. Last month, Governor Andrew Cuomo’s administration – under the threat of lawsuits from environmental groups -- ordered an additional review by the Department of Health. Agency officials have not said whether they will begin issuing permits before that review is complete.
Geography: The Wetterling well is not far from the border of Bradford and Susquehanna counties in Pennsylvania, where the Marcellus so far has been a prolific producer. It’s also close to the Millennium Pipeline -- a natural gas transmission artery bisecting lower upstate New York State to the lucrative New York City metropolitan market. The well is intended to begin addressing the question that has been a matter of informed speculation: How viable is New York’s portion of the Marcellus? While many prospectors see evidence in the geologic record strongly suggesting the value of the Marcellus does not stop short of the Pennsylvania’s border, Casio intends to be among the first to prove it. The Wetterling is roughly between a region in western New York where conventional wells and infrastructure to tap the Trenton Black River formation were developed near the turn of the 21st Century, and unexplored areas to the east thought to hold vast unconventional reserves that have since become extractable through the development of high volume fracking and horizontal drilling. (The people, politics, geology, and geography in this area provide a primary story line in my book, Under the Surface.) As the Marcellus play was proven throughout Pennsylvania, multinational companies negotiated lease deals with landowner coalitions worth hundreds of millions of dollars for acreage straddling both sides of the New York’s border with Pennsylvania just east of the Wetterling well.
Geology: Much of what is known about the geology under the Wetterling well is related to its geography. The well is positioned near the center of a much larger region overlying both the Marcellus and the Utica shales – in the northern end of a shale gas drilling fairway that begins in West Virginia, and cuts northeast through Pennsylvania into southern New York. Although New York’s part of the fairway is largely unexplored and undeveloped, geologists have—based on preliminary data including seismic data, core samples, and information from conventional wells -- identified a sweet spot running just north of the Pennsylvania border through Tioga, Broome, Chenango, and Delaware counties.
There are other circumstances to be taken into account while gauging the significance of the Wetterling well. Gas prices have fallen with a glut of production from Marcellus wells in Pennsylvania, making the prospects of aggressive exploration and expansion into new regions – at least for the near term and possibly longer -- far less certain than during the land rush of 2008 when international companies bid up the leasing price for unexplored New York acreage to between $2,500 and $5,000 an acre. The Wetterling well – if successful – may spark renewed interest in prospecting in New York, especially if the state begins permitting shale gas wells. That would be a welcome sign for land-owner cooperatives controlling large tracts that held out in the 2008 rush expecting to ink deals that would bring more money and tighter safeguards for property owners. The opposite may be true if the Wetterling results are lackluster. Although industry is unlikely to chart its future based on the outcome of a single well, sometimes test wells become bellwethers.
Regardless of the outcome, the industry’s advancement into New York is likely to grab attention from the anti-fracking movement, which continues to gather force among a grass roots base lead by some high-profile activists who have pledged to be jailed for acts of civil disobedience rather than yield to gas development. While gas proponents see shale gas as a cleaner alternative to coal and a bridge to renewable energy forms, opponents see it as no better than other fossil fuels – a threat to the health and quality of life of local communities where it is extracted and a distraction from commitment and resources necessary to develop renewables.
Thursday, October 4, 2012
So what’s next for fracking policy in New York state...? Hint: Cuomo’s move buys time prior to elections
Governor Andrew Cuomo’s administration is keeping doors open both for an extended review of New York’s shale gas policy, and for lifting a moratorium that has prevented exploration for more than four years.
This ambivalence (which I’ve written about here) makes sense given the uncertainty of the state’s legislative composition pending elections. In another month, Cuomo will know whether he is working with a Legislature ruled by Democrats, who are wary of embracing the industry that is aggressively developing the Marcellus Shale in Pennsylvania; or whether he is working with a Republican controlled Senate, lead by pro-drilling leadership that has effectively quelled any attempts to pass legislation to hinder fracking in New York.
Political uncertainties aside, there are three major administrative pieces in play to New York’s fracking policy puzzle.
One is a review on the environmental impacts of high volume hydraulic fracturing. That review, in the form of a document called the Supplemental Generic Environmental Impact Statement (SGEIS), has been through various drafts and has been evolving in the face of public criticism since 2008. The final version of the review has been widely anticipated by year’s end, although it has no legal deadline. The review outlines conditions under which permits would be granted.
The second piece – called rulemaking – is designed to produce regulations, and it's to be built on the findings of the SGEIS. There is a Nov. 29th deadline to complete rulemaking, and, accordingly, finalize regulations that would apply to shale gas development. Unlike the SGEIS, which produces outlines that leave oversight to the discretion of permitting officials, the regulations would create standards that can be uniformly enforced.
The third piece is a health review of fracking. DEC Commissioner Joseph Martens announced last month that will turn that part of the process to Department of Health Commissioner Nirav R. Shah, who will set up an independent advisory panel to help with the job. The health assessment was a late addition by the Cuomo administration after environmental groups threatened to sue the state if the DEC began issuing permits for high volume fracking before public health impacts were documented. Activists are now bringing even more pressure to bear. Today, a group of public health professionals gathered at the Capitol Building in Albany to urge the administration to make the review transparent and open. “No one in the public or medical community has seen the DEC’s review of health impacts, nor has the administration shared details regarding who was involved in its development or what the process and opportunity for input will be,” said David O. Carpenter, director of the Institute for Health and the Environment at the University at Albany's School of Public Health.
So with all this unresolved, when will the shale gas era begin in New York?
Last week, DEC spokeswoman Emily DeSantis stated that agency officials do not expect to meet the Nov. 29 rulemaking deadline. That would mean effectively re-starting the rulemaking process, with at least one public hearing and an indefinite delay. DeSantis also confirmed the possibility that the state could begin issuing shale gas permits after the SGEIS is completed, while the regulations are still being developed.
Where does the health study fit in? Responding to my questions to clarify the timeline, DeSantis said the health study would be factored into both the SGEIS and the rulemaking process, but, she added, “It is undetermined if permits would be issued before rulemaking is complete.” Officials remain unclear on that point, I suspect, because their boss in the governor’s mansion has no reason to commit himself before he has to.
I asked several attorneys representing key stakeholders how they see the process unfolding from here. Here’s a sampling of responses:
Tom West, of West Law Firm, represents the industry. He anticipates the state will begin issuing permits after the SGEIS is complete, and prior to the completion of the rulemaking process. “In order for DEC to refuse to process permits following the issuance of the final SGEIS, they will have to declare some sort of moratorium,” West said.
Kate Sinding, a senior attorney with the National Resources Defense Council, represents environmental interests in line to challenge the industry. She sees things differently. “From our perspective, it would be a huge mistake – and quite possibly illegal – to issue permits prior to completing the rulemaking process,” she said. In addition to a completed health assessment, “It is essential that the public have the opportunity to see and weigh in on the state’s planned approach before it allows drilling companies to start breaking ground.”
Roger Downs, representing the Atlantic Chapter of the Sierra Club, said he would not be surprised if the agency moves forward sooner, rather than later, depending on political circumstances. “We see no evidence that they will wait for a completed rule making process before issuing permits to drill. The terms of the Health study are still vague and we have no doubt that the Governor can rush a review that may satisfy the state's legal obligations without providing any new insight into the true effects of fracking's dangers.”
My take: Cuomo is buying as much time as he can for his staff to work through all the legal permutations, and to better gauge the political climate that he will face in another month.
This ambivalence (which I’ve written about here) makes sense given the uncertainty of the state’s legislative composition pending elections. In another month, Cuomo will know whether he is working with a Legislature ruled by Democrats, who are wary of embracing the industry that is aggressively developing the Marcellus Shale in Pennsylvania; or whether he is working with a Republican controlled Senate, lead by pro-drilling leadership that has effectively quelled any attempts to pass legislation to hinder fracking in New York.
Political uncertainties aside, there are three major administrative pieces in play to New York’s fracking policy puzzle.
One is a review on the environmental impacts of high volume hydraulic fracturing. That review, in the form of a document called the Supplemental Generic Environmental Impact Statement (SGEIS), has been through various drafts and has been evolving in the face of public criticism since 2008. The final version of the review has been widely anticipated by year’s end, although it has no legal deadline. The review outlines conditions under which permits would be granted.
The second piece – called rulemaking – is designed to produce regulations, and it's to be built on the findings of the SGEIS. There is a Nov. 29th deadline to complete rulemaking, and, accordingly, finalize regulations that would apply to shale gas development. Unlike the SGEIS, which produces outlines that leave oversight to the discretion of permitting officials, the regulations would create standards that can be uniformly enforced.
The third piece is a health review of fracking. DEC Commissioner Joseph Martens announced last month that will turn that part of the process to Department of Health Commissioner Nirav R. Shah, who will set up an independent advisory panel to help with the job. The health assessment was a late addition by the Cuomo administration after environmental groups threatened to sue the state if the DEC began issuing permits for high volume fracking before public health impacts were documented. Activists are now bringing even more pressure to bear. Today, a group of public health professionals gathered at the Capitol Building in Albany to urge the administration to make the review transparent and open. “No one in the public or medical community has seen the DEC’s review of health impacts, nor has the administration shared details regarding who was involved in its development or what the process and opportunity for input will be,” said David O. Carpenter, director of the Institute for Health and the Environment at the University at Albany's School of Public Health.
So with all this unresolved, when will the shale gas era begin in New York?
Last week, DEC spokeswoman Emily DeSantis stated that agency officials do not expect to meet the Nov. 29 rulemaking deadline. That would mean effectively re-starting the rulemaking process, with at least one public hearing and an indefinite delay. DeSantis also confirmed the possibility that the state could begin issuing shale gas permits after the SGEIS is completed, while the regulations are still being developed.
Where does the health study fit in? Responding to my questions to clarify the timeline, DeSantis said the health study would be factored into both the SGEIS and the rulemaking process, but, she added, “It is undetermined if permits would be issued before rulemaking is complete.” Officials remain unclear on that point, I suspect, because their boss in the governor’s mansion has no reason to commit himself before he has to.
I asked several attorneys representing key stakeholders how they see the process unfolding from here. Here’s a sampling of responses:
Tom West, of West Law Firm, represents the industry. He anticipates the state will begin issuing permits after the SGEIS is complete, and prior to the completion of the rulemaking process. “In order for DEC to refuse to process permits following the issuance of the final SGEIS, they will have to declare some sort of moratorium,” West said.
Kate Sinding, a senior attorney with the National Resources Defense Council, represents environmental interests in line to challenge the industry. She sees things differently. “From our perspective, it would be a huge mistake – and quite possibly illegal – to issue permits prior to completing the rulemaking process,” she said. In addition to a completed health assessment, “It is essential that the public have the opportunity to see and weigh in on the state’s planned approach before it allows drilling companies to start breaking ground.”
Roger Downs, representing the Atlantic Chapter of the Sierra Club, said he would not be surprised if the agency moves forward sooner, rather than later, depending on political circumstances. “We see no evidence that they will wait for a completed rule making process before issuing permits to drill. The terms of the Health study are still vague and we have no doubt that the Governor can rush a review that may satisfy the state's legal obligations without providing any new insight into the true effects of fracking's dangers.”
My take: Cuomo is buying as much time as he can for his staff to work through all the legal permutations, and to better gauge the political climate that he will face in another month.
Wednesday, October 3, 2012
Court rules against Binghamton fracking moratorium: Home Rule supporters win key points in broader fight
Both sides of the debate claimed victory in a ruling Tuesday by New York Supreme Court Judge Ferris Lebous. Lebous ruled that the city’s moratorium on drilling was not valid because drilling was not proven to be an impending crises and the city lacked a dire need to prevent it. That ruling was a clear victory for a group of landowners who had brought the suit against Binghamton Mayor Matt Ryan and the City Council, which enacted the moratorium last December. The law would have prohibited drilling, exploration, gas storage and disposal of drilling waste within the city limits.
The Marcellus Drilling News, a pro-fracking blog, summed up the position of those eager to see the industry begin developing the Marcellus Shale and other formations underlying Upstate New York: “All in all, Lebous’ ruling was a victory for landowners and for those who support the right of landowners to allow drilling on or under their property if they want to.”
The influence of the ruling (embedded below) on future cases will likely run deep, and possibly counter to the interests of fracking supporters. While Lebous struck down the ban due to circumstances and context unique to the Binghamton case, he affirmed the state’s ruling in favor of bans in two other controversial cases that collectively represent a key bit of case law in the larger home rule debate. In supporting bans in the town’s of Dryden and Middlefield, Lebous wrote:
In well-reasoned, well –founded decisions, determined that ELC-23-0303(2) [the state law governing gas development] does not supersede local government’s rights to regulate the use of lands within their jurisdictions.
Helen Slottje, who represents municipal interests in controlling shale gas development, saw the Lebous ruling as “a huge victory.” (Click here for a full statement from the Community Environmental Defense Council.) Slottje explained:
On the narrow question of the specific (non—land-use) enactment mechanism relied upon by the city in connection with passage of its two-year law, the court found the city’s law was invalid because … the law should have been enacted on a different basis. But on the broader question of the city’s legal authority to enact a pro-active law prohibiting gas exploration, extraction and storage activities the court explicitly adopted the “well reasoned and well founded” decisions in the Dryden and Middlefield cases.The court also ruled that local laws (as with Dryden and Middlefield) are not pre-empted by the state’s Gas Mining Law, the interpretation of which is a crucial aspect in all home rule cases in New York.
The issue is far from resolved. The New York State Supreme Court, the state’s lower court, is the starting point of a legal contest weighing people’s rights to exploit their land against a town’s rights to determine land-use policy in the best interest of local residents. The industry is working on an appeal to the Dryden and Middlefield cases, which will be filed this month, according to industry lawyer Tom West.