NY fracking policy review expected “in a couple of weeks” DEC Chief’s 11th hour testimony puts onus on health dept.

The last piece to New York’s four and a half year policy review of fracking will be completed in “a couple of weeks,” the state’s top regulator told lawmakers this week. And then what?

Martens at hearing

DEC Commissioner Joseph Martens gave a few clues but no clear answers as he responded to questions in a legislative budget hearing Monday in Albany after delivering a 14-minute summary of the Department of Environmental Conseravation’s notable activities in 2012. Speaking in front of legislators and a gallery filled with hundreds of anti-fracking activists who drew repeated admonishments from finance committee Chair John DeFrancisco to pipe down or face a prolonged recess, Martens read a prepared statement covering issues ranging from restoring coastal frontage after hurricane Sandy to land acquisition and outdoor recreation. Remarkably, his statement lacked any reference to the most controversial environmental issue facing the state: whether, when, or how to allow shale gas development to proceed. Martens left it to lawmakers to bring that subject up during the question and answer period. Although Martens answers tended to be vague, nearly two hours of questioning yielded these informational nuggets:

• The Supplemental Generic Environmental Impact Statement (SGEIS), the exhaustive policy overhaul aimed at regulating high volume hydraulic fracturing, cost “several million” dollars.

• Before finalizing the SGEIS, officials are awaiting an amendment from the Department of Health Commissioner Nirav Shah that assesses whether the DEC’s policy sufficiently covers health impacts. More information will be available after that piece is completed in “a couple of weeks,” Martens said.

• Martens said he has no idea what the Health Department amendment says, to what degree it will influence the final outcome of the DEC’s policy proposal, or whether the state will even proceed with the plan it has been working on for nearly five years.

• There are no funds in Cuomo's proposed budget for the fiscal year that starts in April to deal with fracking or the increased regulatory burden of permitting and overseeing shale gas wells.

• There has been broad anticipation that the state will release the SGEIS next week to meet a Feb. 27 deadline to finalize a set of regulations that are being developed concurrently with the SGEIS. Martens did not know whether the state would meet the deadline.

Protesters at hearing

This is where the sequence of events gets unwieldy. The regs cannot be finalized without the SGEIS. And the SGEIS cannot be complete without the health department’s assessment of the risks. The health review -- added to the overall process late last year on an ad-hoc basis in an attempt to satisfy criticism -- now takes on critical importance and political complexity.

If anything was clear in Martens testimony, it was the importance of the Department of Health in deciding the fate of New York’s fracking policy. Responding to questions about why nothing had been budgeted this year to oversee fracking, Martens again referred to the pending health department amendment: “It is really up in the air,” he said. “It was premature to include funds when we weren’t at the end of the process.” Other answers to other questions repeatedly lead him back to the health review “… It all depends on what the health review says. If it recommends additional measures, it will be difficult to get the regs finalized … We’ll have it in a few weeks and then decide where we’ll go from there ... I have to get the health report before we make any decisions about whether we move forward or not…”

But what exactly is the health review? It lacks a public scoping component, procedural outline, and any clear definition of its objective that has been publically vetted. This is a sore spot for activists. An hour and 45 minutes into the hearing, Assemblywoman Barbara Lifton complained that the scope and contents of the health study were being kept secret, and she inquired whether it would be open to public hearings before it was finalized with the SGEIS.

Lifton: .. Is the public going to have an opportunity for public comment and review..?

Martens: (smiling and repeating an earlier quip): I’m sure the public will comment on this...

Lifton: ... I’m asking you a serious question … Is there going to be legal, formal public comment on this document ..?

Martens: “I don’t know at this stage. I haven’t seen the report yet. The report could include a whole range of things. From one end of the spectrum, -- no we’re not convinced you’ve done enough [to mitigate health risks]. They could be convinced that you’ve done enough and conclude it shouldn’t happen in New York. That’s one possibility. Until I’ve seen that I’m not drawing any conclusions. There may be no need for public comment, depending on what Dr. Shah says.“

An audio file of this exchange, edited by Matt Richmond of WSKG Radio, is below.



Martens vagueness – along with his remarkable claim that he has no idea what the report might say after earlier testifying he has been working with the Department of Health on these questions for years – reflects a more general opaqueness from the Cuomo administration about the fate of fracking in New York. It is an approach that has frustrated and angered people on both sides of the issue, but anti-fracking activist have reacted most visibly.

That anger reached a boiling point just prior to Martens’ testimony. As hundreds of activists filed into the assembly hall, and officials, law makers, staffers, and media milled around the floor, Sandra Steingraber, an Ithaca College biologist, environmental health specialist, and high-profile leader of the anti-fracking movement, sought out Martens and began pressing him for information. Martens turned away and one of his staff stepped in, prompting Steingraber to raise her voice to an oratory pitch echoing through the auditorium. “We are going to open this process up because secrecy cannot protect public health. I have tried to have a conversation with you, but you don’t answer any letters, so I’m using my voice, in front of the people of New York to say we are not standing for a secret health study…” Steingraber’s continued her impromptu stumping for a full minute with no signs of stopping before she was cut short by a burly official who demanded she take a seat or be arrested. Steingraber stood her ground, continuing her castigation long enough to illustrate the organization, gumption, and leadership of a grass roots network that will surely be challenging the DEC if fracking is allowed. (Video, posted by Colleen Boland on You Tube, is embeded below)



Beyond that, anybody trying to pull any definitive information about fracking from this scene or the ensuing hearings had slim pickings. Where does this leave residents evenly divided for and against fracking (according to a recent poll), and the 20 percent who haven’t made up their mind?

First, it’s important to remember that the decision to proceed with fracking, or not, extends well beyond the bureaucratic mechanism of the review process. Ultimately, it will be made above Martens and Shah and probably by Cuomo himself, given the governor’s political stake in the game. I have written before about Cuomo’s ambivalence about fracking, and Monday’s hearing once again shows, if anything, his contimued lack of commitment.

Missing the Feb. 13 deadlines suggests the DEC will not be issuing the regs by the end of the month and the agency will have to reopen that process while enduring the groundswell of protests that go along with each hearing. But it’s critical to remember that the permitting process can begin once the SGEIS is finished, even without the regs finalized.

This gives Cuomo a lot of options. Depending on which way the political winds blow (and the status of natural gas prices) New York could release the SGEIS before or after Wednesday’s deadline. Because permitting can begin without regulations, the release of the SGEIS, whenever it comes, would technically open the path of shale gas development in New York, although it would be a rocky, narrow path along the northern Marcellus frontier. This path will be fraught with strident anti-drilling resistance, protests, legal challenges, and a bottleneck of applications handled by an understaffed agency. For established operators, it certainly would be a much less attractive route than the permitting boulevard that has accelerated drilling and fracking in Pennsylvania. But it very well could appeal to a certain breed of prospectors, speculators, innovators, and exploration companies working with relatively large swaths of unleased land and willing to take the chances to stake out and prove up new territory.

Cuomo can also hold off, given the low prices of natural gas, the lack of the political push from the pro-gassers to offset the uprising from the antis, split poles, etc. With the SGEIS pieces pretty much in place, his lack of commitment is hard to read. Certainly, as a politician, he is inclined to weigh monumental political issues against other monumental political issues, and looking at the state’s energy needs goes beyond fracking. In action and rhetoric, the governor has supported closing Indian Point and discouraging coal-burning plants. Can he place himself to the left of President Obama on energy and still maintain mainstream presidential aspirations?

At the end of Martens’ testimony Monday, the protesters stood and chanted "Not one well!" before heading to the Capitol for a rally with Steingraber and celebrities that included actor Mark Rufalo and film-maker Josh Fox. They were also joined by Arun Gandhi, grandson of Mahatma Gandhi, who sign a "pledge of resistance" to fracking and is training protesters in civil disobedience if shale gas development is permitted.

That story is taking shape and we will soon know whether or how it will unfold.