Cuomo buys more time for New York fracking decision DEC: draft regs do not signal commitment to shale gas

It’s been another frenzied week on the fracking front in Albany – with much sound and fury signifying nothing.

Or not?

Another deadline came and went amid confusion and contention about the timing and protocol of issuing draft regulations for shale gas development in New York. To clear things up, Governor Andrew Cuomo’s administration issued a statement Friday saying everything is still up in the air.

We learned, after the administration filed draft regs to avoid a deadline that would have derailed the epic policy process, that the Governor is still undecided. The draft regulations over which officials at state Department of Environmental Conservation have toiled for the past year are not a reflection of the governor’s intentions to embrace or reject shale gas.

“If DEC decides that hydraulic fracturing cannot be safely done in New York, these regulations will not have any practical effect and the process will not go forward,” read the statement from DEC spokeswoman Emily DeSantis. “If DEC decides that the process can be done safely, these regulations would be adjusted in accordance with the health and safety requirements and issues addressed in the Supplemental Generic Environmental Impact Statement.”

The statement came two days after the administration kept alive the prospect of shale gas development by quietly issuing the pending regulations – still a work in progress -- to meet a Nov. 29th administrative deadline. Failure to meet the deadline would mean the rulemaking process would expire. That would be a relief to fracking opponents, because it would send the administration back to the drawing board and re-open the process to the contentious public hearings that have built momentum for a well organized and motivated anti-fracking movement. The movement has gone nationwide, and New York occupies center stage. For that same reason, missing the deadline would have been a blow to fracking proponents – including groups of landowners eager to lease their land, backed by conservative business interests and the industry’s advertising and lobbying muscle. (Proponents see high volume hydraulic fracturing – a process to extract natural gas from bedrock by injecting large volumes of pressured chemical solution -- as vital to economic development and energy independence. Opponents see it as environmental ruin and building dependence on fossil fuels.)

Nobody knew right up to and following the final hour of the deadline what course Cuomo’s DEC would take, and when the hour came and went, not everybody was even sure whether the state had filed the regs because no official notice was given. While there was no attempt by the governor’s office to defuse the matter, I know from sources close to this that their was a frenzied push by DEC staff to meet the deadline even as representatives from influential environmental groups made last ditch calls to urge them to hold off, at least until the agency could receive analysis of a panel of independent health experts commissioned to review DEC’s policy.

So why didn’t the DEC issue a statement to clear things up in advance of all this rather than switch to damage control amid protest that followed?

An obvious read of the situation is that meeting the deadline represents a step toward rather than a step away from shale gas development. Why would the agency be sweating the details over thousands pages of dense policy – flawed in the eyes of some and sound in the eyes of others and certain to meet legal challenges from many angles -- if officials were ready to shelve the entire regulatory project that has been under fire for more than four years?

The answer is that Cuomo himself -- two years away from a gubernatorial election and/or possibly four years away from a presidential bid -- is buying as much time as he can while attempting to manage the political forces at work that will influence his career and shale gas development in particular. Regardless of the outcome, he will have to answer two critical political constituencies. Well-healed and internationally renown environmental groups such as the National Resources Defense Council (among others) and Big Oil and the business lobby. Both of these institutional forces are backed by impassioned grass roots bases. Adding to the complications: Cuomo cannot yet gauge Legislative positions, as control of the Senate remains undecided.

The action of the last week tells us, if anything, that Cuomo is taking the fracking conundrum day-by-day if not hour-by-hour. The decision to meet the deadline by issuing a draft of the regs sends a signal to industry supporters that the administration is moving forward in good faith to get policy in place that would allow shale gas development. The statement that came retroactively to explain the decision was clearly intended to calm an uprising with the anti-fracking movement by suggesting that the administration has not passed the point of no return.

Here is the entire statement from the DEC:

The New York State Department of Environmental Conservation DEC has filed a Notice of Continuation with the Department of State to extend the rulemaking process by 90 days in order to give New York State Commissioner of Health, Dr. Nirav Shah, time to complete his review of the draft Supplemental Generic Environmental Impact Statement. This extension is necessary, in part, because Commissioner Martens requested and Dr. Shah agreed to provide an additional review, in consultation with outside experts, of whether DEC has adequately addressed potential impacts to public health. This filing with the Department of State merely extends the rulemaking period to enable Dr. Shah to complete his review and DEC time to take into account the results of Dr. Shah’s review and continue to consider the potential impacts of high-volume hydraulic fracturing.

In order to receive the needed extension, DEC was required by law to refile the draft regulations along with responses to public comments received during the public comment period, and preliminary revisions, responsive to those comments. The refiled rule does not reflect current DEC policy with respect to whether or not hydraulic fracturing can be done safely in New York. That determination will be based on the findings of the environmental impact statement and Dr. Shah’s public health review of that document.

DEC will not take any final action or make any decision regarding hydraulic fracturing until after Dr. Shah’s health review is completed and DEC, through the environmental impact statement, is satisfied that this activity can be done safely in New York State.

If DEC decides that hydraulic fracturing cannot be safely done in New York, these regulations will not have any practical effect and the process will not go forward. If DEC decides that the process can be done safely, these regulations would be adjusted in accordance with the health and safety requirements and issues addressed in the Supplemental Generic Environmental Impact Statement.