Leaked record, DEC response show NY fracking quandary Questions persist over scope and relevance of health study

Several media outlets were able to make some hay recently with a leaked document suggesting that New York state regulators were ready to embrace shale gas development without further assessing its impact on public health.

Danny Hakim of the New York Times, Jon Campbell of Gannett and Karen Dewitt of WXXI were among Albany bureau reporters who got a hold of the document written by health and environmental officials in early 2012 as part of a broader policy package. The eight-page draft includes justifications for allowing high volume hydraulic fracturing to stimulate production of shale gas wells in New York without a comprehensive evaluation of health consequences. Specifically, it dismisses the type of analysis that activists are demanding – an exhaustive statistical breakdown, called a Health Impact Assessment, to quantify risks from various exposure scenarios. The DEC is against that kind of review, according to the leaked document, because it would “involve making a large number of assumptions about the many scenario-specific variables that influence the nature and degree of potential human exposure and toxicity.” Rather, the report concludes, with proper oversight “the Department expects that human chemical exposures during normal HVHF [High Volume Hydraulic Fracturing] operations will be prevented or reduced below levels of significant health concern.”

In short, the leaked document shows that the DEC was pursuing the exact approach that activist feared. “The position that the impacts of fracking can be regulated to ‘below levels of significant health concern’ is pure fantasy, and it is understandable why (Gov. Andrew Cuomo) did not press forward with these baseless conclusions last year,” Roger Downs, conservation director of the Sierra Club Atlantic Chapter told Campbell.

Emily DeSantis, a spokeswoman for the DEC, said the document that made news this week was outdated and no longer relevant in light of new developments. Specifically, the agency has since commissioned three independent health experts to assess whether the DEC’s work sufficiently addresses health concerns. More on that in a moment.

The leaked document is especially important in the context of controversy over whether the state has done enough homework to fully understand health risks associated with the controversial process, informally known as fracking, that injects high volumes of chemical solution into well bores to break bedrock and release gas. Fracking’s impact on public health is one of many issues the DEC has addressed in a 4,000-page draft document called the Supplemental Generic Environmental Impact Statement (SGEIS). It has been a work in progress since 2008. Critics have submitted more than 80,000 comments suggesting improvements. Some question whether state officials are fully accounting for health risks, ranging from exposure pathways from air and water pollution to community stresses related to boom/bust cycles of mineral extraction.

At the urging of environmental agencies late last year, the DEC commissioned three experts to assess whether the SGEIS adequately covers health issues. The panel was not asked to design an original study, but to critique the agency’s existing work. The experts have since submitted their opinions to the Department of Health, I have been told by sources, and staffers are now incorporating them into the SGEIS.

The document leaked to reporters Tuesday was written by unidentified staffers. It was to be added to the SGEIS in response to comments calling for a more thorough health analysis. Some will likely interpret the document’s defensive tone as yet more evidence that the outcome of the shale gas policy is preordained – and the health review will provide no more than a last-minute rubber stamp. It smacks of the message delivered through staff at the Division of Mineral Resources since the beginning of the shale gas boom in 2008. Bradley Field, head of that division, has long maintained that natural gas extraction is problem free; the DEC has never had any problems with conventional gas development; and unconventional development is not significantly different from a regulatory or safety standpoint -- claims that his critics find absurd.

But Field will not be making the final call on whether and when New York state permits drilling into the Utica and Marcellus shales – two of the largest reserves in the world. Governor Andrew Cuomo will.

The leaked document – and the DEC’s assertion that it is no longer relevant - represents a broader pattern over the last five years. Despite a continued push from the Mineral Resources Division, the governor and various advisors are ambivalent about committing upstate New York to large-scale mineral extraction and its potential to fundamentally change the character of many communities. Facing pressure from an influential anti-fracking campaign, including grass roots and institutional efforts, and as the prices of natural gas remains low, they are delaying that decision for as long as possible.

Cuomo has already limited some of his options. Through rhetoric and action, he is discouraging coal burning power plants and saying no to nuclear power. Can he also say no to shale gas and keep his political credibility in the absence of what would have to be unprecedented and revolutionary development of renewable fuel sources to fill the gap? At 55, Cuomo has a long political future, including a possible shot at the White House. Will the fracking decision become a political weight or buoy in his aspirations to become a national standard bearer for his party? For what it’s worth, and perhaps it’s not much, Cuomo’s policy seems out of step with Barack Obama’s “all-of-the-above” approach to developing domestic energy.

Since Cuomo took office two years ago, the messages over fracking have been mixed, and the confusion over the leaked document is only the most recent example. Early last summer – shortly after the document was written -- Cuomo proposed that the best approach to New York’s dilemma was to split the baby. Shale gas permits would be initially granted in places that want it, and withheld in places that do not. Additionally, the state would ban fracking altogether in certain watersheds, including those that supply New York City and Syracuse. It was a politically expedient answer, with messy and legally cumbersome technicalities. If this is the path forward, the state will have to figure out how it can legally prohibit the rights of some landowners to develop their mineral sources but not others, or how it can grant permits to proceed with an industrial process in one watershed that is deemed unsafe in another. Before it gets even that far, it will have to figure out a fair and accurate way to determine what areas want it and what areas do not. Will that require referendums? Local resolutions?

If shale gas development is left to natural selection of town government, what happens when push comes to shove in places over a particularly key section of the resource or strategic infrastructure rights of way where lack of access in one part hinders the development of other parts? These are questions that will apply not just in the near term, when the stakes are relatively low along with the price of gas. Policy must be strong enough to withstand a time of reckoning when the value of the resource doubles or triples, which is feasible given the historical fluctuation of gas prices and plans to increase markets with exports.

There is something else that has become an important aspect of New York’s policy story: Transparency. The fact that the leaked report was news at all is a consequence of the administration’s reluctance to respond to questions and certain freedom of information requests, leaving reporters digging extra hard to satisfy a public that is starving for information. Neither Cuomo nor his staff have responded to questions or offered records that would outline the scope of work assigned to the three health reviewers, for example.

Disembodied informational tidbits tend to raise more questions then they answer, and become news even without context needed to assess their relevance. Perhaps the DEC document leaked this week is outdated and irrelevant, as DeSantis says. If that is the case, it suggests the agency has taken an abrupt turn in a few short months. If it’s not the case, then the response is thin political cover from fallout from the legislative and judicial battle that will surely ensue once the SGEIS is released.