Activists attack fracking plan with DEC’s own red tape 200K comments on final day puts pressure on NY agency

With one deadline past and another imminent, staffers at New York’s Department of Environmental Conservation attempting to resolve New York’s fracking conundrum find themselves in a familiar position: under pressure.

On the final day for public comment on draft regulations for development of shale gas reserves under upstate New York, members of a well-organized anti-fracking campaign delivered more than 200,000 written comments. Activists carted boxes into the agency’s headquarters in Albany hours before the 5 p.m. deadline. DEC staffers now have 50 days to process and respond to this latest deluge of criticism before they can finalize a plan.

Sean Lennon and Yoko Ono join response at DEC headquarters

Following the direction of New York Governor Andrew Cuomo and DEC Commissioner Joseph Martens, officials have been attempting to complete policy for shale gas development in New York. The focus is on high volume hydraulic fracturing, known commonly as fracking – a process to shatter subterranean mantels of bedrock with pressurized chemical solution to release oil and gas. Advances in fracking technology are enabling exploitation of reserves that were previously inaccessible, and also raising concerns about social and environmental impacts from a new era of mineral extraction on a scale previously unseen. Until New York’s policy is complete, permits to develop the Utica and Marcellus shales extending under upstate New York are on hold.

As of Monday, the DEC had received 1,373 comments, said Emily DeSantis, a spokeswoman for the agency. Today’s special delivery capped off a week of protests that served as a political show of force by both grass roots and institutional fracking opponents, lead by activists well versed in the procedural, political, and scientific aspects of the hotly debated issue. On Monday, Climate Change headliner Bill McKibben spoke on the hazards of fossil fuel extraction and consumption and global warming in front of a sold-out crowd in The Egg, a 1,500-seat performing arts venue in Rockefeller Plaza. On Wednesday, more than 1,500 chanting protesters with signs and banners crammed a quarter-mile stretch of the plaza’s underground concourse, which connects the state Capitol and Legislative Office Building to the convention center where governor Cuomo delivered his State of the State address. The demonstration included an appearance and performance by 93-year-old folk legend Pete Seeger.

Today, the comments were delivered to the DEC with a delegation that included Sandra Steingraber, a biologist, activist and author who has been tutoring followers on the technical aspects of the regulations and encouraging them to respond, and Yoko Ono and Sean Lennon, who are among celebrities who have served as figureheads for the movement.

Sean Lennon at DEC headquarters

While there is bound to be a percentage of comments that are redundant or irrelevant, the agency will still have to read them, sort them, and respond appropriately by Feb. 27. That means that staffers will have to read and sort some 4,000 comments a day. That’s 400 an hour, more than six a minute, or one every 10 seconds. That's assuming 70-hour workweeks with no breaks to answer the phone, eat, or go to the bathroom. Of course, one person will not be processing all the requests. But it’s a daunting challenge even for a qualified team of officials, and it raises the questions of what kind of resources the DEC will be able to summon to meet the deadline. Within this mass of paperworks will be comments that require extra thoughtful analysis and perhaps, if taken in good faith, warrant change to the draft document. In addition to the boxes of comments, the agency will have to respond to “some very detailed technical comments” from environmental groups, including the National Resource Defense Council, Earthjustice, Riverkeeper, Catskill Mountainkeeper, and Sierra Club being submitted this afternoon, said Deborah Goldberg, an attorney with Earth Justice.

“Failure to comply with these requirements is grounds for legal challenge,” Goldberg said.

The sheer volume of responses will pose a significant logistical problem for the agency, which has to respond to all of them before finalizing regulations. The agency issued the draft regulations on Nov. 29 to qualify for a 90-day extension to keep the rule making process from expiring. By law, the agency also had to allow a 30-day period -- from Dec. 12 until today -- for public comment. If the regulations are not finalized by Feb. 27, the agency will have to restart the rule making process and reopen it for public comment.

The regulations, however, are just one piece of New York’s monumental and unprecedented policy overhaul to try to come to terms with shale gas development. The regulations represent the battle of today. A larger and more critical piece, and surely to become the battle of tomorrow, is a review of environmental and health impacts on which the regulations are based. That review, called the Supplemental Generic Environmental Impact Statement (SGEIS), has been in draft form since 2008 and there is no deadline for its completion. In theory, the state could begin issuing permits for shale development after the final version of the SGEIS is released, even if the regulations are not finalized.

That also would provoke an all out effort, including law suits, by the coalition of groups leading the anti-fracking campaign who have faulted the process every step of the way. A salient complaint is that the regulations were issued prior to the final SGEIS on which they were based, forcing the public to evaluate regulations without access to the SGEIS and relevant health and environmental considerations.

In response to a request from leaders of environmental groups, and in anticipation of law suits, Martens announced last fall that the state was hiring outside consultants to review the work of the DEC to ensure that it had sufficiently accounted for public health impacts of fracking. Like the final SGEIS, the scope and results of that review have not been made public.

Even as the regulations are being developed, Cuomo’s administration has indicated through prepared statements that it is undecided on whether it will allow shale gas development. It is a subject that Cuomo rarely addresses publically. He did not mention it in this week’s State of the State address, even though fracking represents the biggest environmental policy fight in the state’s recent history.

Update: John Campbell, Gannett’s Albany reporter, reported today that if DEC officials intend to finalize the regulations by Feb. 27, administrative law requires them to release the final SGEIS (which includes a summary of the health assessment) at least 10 days prior. A mid-February release of the SGEIS would be a clear sign that the agency intends to push forward against the resistance with its plan to open New York of shale gas development. That would be a victory for those who have been supporting development for economic reasons. If the agency lets that window pass, it would signal the opposite.