Actions, not words provide insight into NY’s fracking future 3 signs the state will not permit shale gas anytime soon

Early last summer, Governor Andrew Cuomo proposed to allow fracking on a test basis in certain areas along the state’s border with Pennsylvania over a prime area of the Marcellus Shale.  A month later, Cuomo suggested that the state’s policy review on the issue would be completed by Labor Day, or shortly after.

We have since learned that information from Cuomo and his staff about fracking has been consistent only in that it has been reliably contradictory, vague, and carefully crafted to appear neutral amid a firestorm of controversy and partisanship that have come to define New York’s fracking dilemma.   

Recent examples:

On Feb. 4, Department of Environmental Conservation Commissioner Joe Martens entered a legislative hearing room in the capitol where protesters outnumbered lawmakers and staff by more than three to one. Pressed by lawmakers, Martens testified that the final piece of the state’s policy review for gas permitting would be released by the Department of Health within “a few weeks.” That piece consists of a DOH review of whether the DEC’s plan to oversee the industry– outlined in a document called the Supplemental Generic Environmental Impact Statement (SGEIS) -- would sufficiently protect public health. Oddly, the administration has not released any scoping document, time frame, or explanation of the DOH review, and Martens told lawmakers DOH Commissioner Nirav Shah had not shared any specifics about its status with the DEC.

On Feb. 12, the DEC released a two-page memo from DOH Commissioner Shah to Martens explaining that the DOH review and recommendations would be completed “within a few weeks.”  Shah advised that, in the meantime, the DOH staff was reviewing three studies evaluating the impact of fracking on public health elsewhere. They include a federal EPA evaluation of risks to groundwater, and two studies evaluating public health indicators near shale gas development in Pennsylvania, including one by Geisinger Health Systems that will evaluate hundreds of thousands of records of patients living in shale gas regions. None of the studies will be completed this year, and Shah did not explain how DOH staff might be able to glean useful information from them in a few weeks. The tone of his letter suggested an indefinite delay.

The time to ensure the impacts on public health are properly considered is before a state permits drilling. Other states began serious health reviews only after proceeding with widespread HVHF.

In my view, that is not the right approach for New York to take if we are serious that public health is the paramount question in making the HVHF decision. And as Health Commissioner, protecting the public health is my primary job.

Since the release of the memo, Martens, Shah, and Cuomo have downplayed the notion that the review could hinder permitting for very long. The day after the memo was released, Martens said the state could still move forward with permitting shale wells, even though it missed a key deadline to adopt regulations. At a March 11 cabinet meeting, Shah said that the final DOH analysis would be done “in the next few weeks,” and in the next sentence declared the administration has “no time table” to complete it’s work, and that the science under evaluation “was a moving target.” At the same meeting, in response to a query from Gannett’s Albany correspondent Jon Campbell, Cuomo characterized the follow-up work by the DOH as possibly irrelevant. “We never said you had to wait for one of those studies or all three of those studies to finish,” he explained. “Just that they would be looked at during the pendency of the Department of Health Review.”

Campbell followed up with this logical question: If you don’t have results from those studies, what value are they to the Department of Health’s review?

Cuomo shrugged. “I don’t know,” he said. “Call them up. Look at them. Talk to them and find out. Maybe they are totally useless. In which case they’re useless. Maybe they have some information that is instructive to you. In which case you use the information.”

I took the governor’s suggestion. I learned that the DOH staff completed its meeting with administrators of the studies weeks ago, but I could find out nothing regarding what exactly health officials were looking at or how it would be factored into the SGEIS. Amanda O'Rourke, a spokeswoman for Geisinger, confirmed that DOH officials met with members of the Geisinger research team in late February, but added “we are not granting interviews on this topic at this time.” Asked why, she replied:  “I simply prefer not to discuss the meeting.”

This tells us only that the Cuomo administration, at the expense of transparency, has designed it’s fracking modus operandi to neutralize offensives from lobbyists and grass roots activists that inevitably accompany every small sign and huge expectation that the administration is leaning one way or the other. Rather than hanging on words, those trying to predict when and if shale gas wells will be sunk in New York are better off looking at more tangible signs within the administration, including these:

1) No budget for regulatory staff. DEC administrators have said the agency will need at least 140 new staff members to regulate the shale gas industry in New York. The governor’s budget, now under negotiation with legislators, contains no money to add staff for shale gas permitting or inspection. Moreover, an advisory panel of lawmakers and representatives from the industry and environmental groups tasked with looking at revenue sources for this function has not met in the past two years, and there are no signs of it being reconvened.

2) Recent departures suggest a critical disconnect. Two administrators key to drilling policy have inexplicably resigned in recent weeks. The most high profile departure was that of Robert Hallman, Cuomo’s deputy secretary for energy and environment who is on record as advocating shale gas development as an important bridge to cleaner energy fuel sources. Perhaps more relevant, however, is the resignation of Deputy Commissioner and General Counsel Steve Russo, who was instrumental in overseeing the development of the SGEIS under Cuomo. Given that both pro and anti-fracking groups have threatened to challenge the legal soundness of the state’s policy, it seems unlikely that Cuomo would proceed without a successor to Russo who is up to speed on the legal complexity of issues that have been evolving since 2008.

3) Everything remains on hold, as deadlines pass. The most current reason for the delay – that the DOH staff is looking at other studies – is ill defined and, as Cuomo suggested, possibly irrelevant. Further, the “few weeks” timetable for that work has long passed. I have heard from multiple sources that the work is in fact done, and there are larger forces at work.  As much as those close to the fracking debate would like to see the decision made in a political vacuum, it seldom if ever works that way. The fracking decision, which is also pending legislation, is one of many chips on the big table on which things get done in Albany. Gun Control (recently passed but still relevant), Minimum Wage, Casino designations, Stop and Frisk, and myriad budget issues.

For worse or better, Cuomo has decided that fracking, for now, is one of those issues that remains on the table. The glut of gas coming on the market in Pennsylvania has made this the path of least resistance for him, as it has substantially eased the demand for New York’s share of the resource while lowering prices. Tension between both camps of the fracking debate – and poles suggesting a split in the broader public (recently nudging slightly toward anti-frackers) – suggest the status quo is less damaging to Cuomo than the sequence of events that would come with a clear commitment for or against fracking.