How relevant and damaging that information is to either side of the debate remains to be seen, but it will provide potential leverage for both fracking proponents unhappy with the governor’s inaction on the matter, and opponents unhappy with the administration’s secrecy over policy development.
The state’s last public review of draft policy to allow fracking was finished in 2011. Since then, mainstream media outlets have reported on several occasions that a decision was imminent. In June, 2012, Cuomo staffers told New York Times reporter Danny Hakim that the administration would allow fracking in areas where local officials wanted it -- news that prompted protests and organized opposition from fractivists. Four months later, DEC Commissioner Joseph Martens announced that the agency’s decision would depend on a review of fracking’s impact on public health from New York State Health Commissioner Nirav Shah.
Since then, Martens announced on several occasions that the review would be completed in “a matter of weeks.” Yet that proved to be wrong each time, and lacking any formal timetable, predictions were speculative, based on what appeared to be indecision by the governor himself.
Cuomo has been reluctant to talk about the matter, much less share his strategy on how, when, and whether New York will allow shale gas development. His refrain is “let the science decide,” and with that, he has deferred to Martens. Martens has deferred to Health Commissioner Shah, who is purportedly heading up the health review, which is yet to be shared in any public form. (In his state of the state address last week, Cuomo made no mention of fracking. Moreover, his recently released energy plan calls for increased consumption of natural gas, but doesn’t address the status the state’s policy on whether to allow production.)
Administration officials won’t talk about the fracking issue except in most vague terms, nor will their media staff. Outside experts hired to make key assessments are bound by contracts that include a clause prohibiting them from disclosing or discussing the proceedings or records involved.
Recently pressed by a reporter on when the public would be able to see the work, Shah replied “When I’m done.” Jon Campbell, of Gannett’s Albany Bureau, reported that quote in an update last month, along with this:
“For the last few months, I’ve said that as the science evolves, we will reflect the science in my recommendations,” Shah said. “As recently as a month ago, we got new data from Texas and Wyoming ,and until I’m comfortable with the state of the science, I’m withholding my recommendation.”
Cuomo said that while his administration has moved quickly on other efforts, such as building a new Tappan Zee Bridge in the Hudson Valley, fracking is a complex issue.
“I want the right decision, not necessarily the fastest decision,” Cuomo said Monday. “When it’s appropriate to move fast, we can move fast. I think we’ve shown that over and over again.”
Cuomo said Monday that there is no timeline, though he “would expect” a decision before Election Day. He said he wouldn’t pressure Shah into a decision.
“But my timeline is whatever Commissioner Shah needs to do it right and feel comfortable,” Cuomo said. “It’s a major decision.”
The reason why the governor is keeping the internal workings of this decision from public view is easily understood but not easily defensible. (More on that here.) From a politician’s view, fracking represents a quagmire of dissention and criticism as much as an economic promise or environmental threat, and Cuomo would be better off without having to make a decision. The next best thing he can do is put if off until after elections.
But that might not be possible. The public expects its elected officials to be up for making hard decisions while accounting for them publically. Cuomo’s unwillingness to share a timeline, protocol, or update on the review (which is subject to public discourse under the State Environmental Quality Review law) has predictably raised challenges from critics, who are now taking the matter to court
Late last summer, the Seneca Lake Pure Waters Association, represented by attorney Rachel Treichler, filed a complaint in state Supreme Court seeking records detailing the mechanics of Cuomo’s administrative directive on fracking. The goal is to assess “what factual information was being collected and reviewed by DOH and the instructions given to DOH staff regarding the DOH health impact study,” according to a statement from the association. The action follows the organization’s unsuccessful attempts to view records related to the study under the Freedom of Information Law. The DOH denied that request on grounds that the information comes under the category of “exempt intra-agency or inter-agency records.” The state is now negotiating the case with the advocacy group, with an outcome expected within months, according to sources.
More recently, industry attorney Tom West has filed a complaint on behalf of landowners and Norse, a bankrupt drilling company that operated in upstate New York. The suit, Wallach v. New York State, references State Environmental Quality Review (SEQR) law, which requires environmental reviews to be completed in a timely and public manner. It claims that the delay led to Norse bankruptcy, and is “legally unjustifiable” as well as “arbitrary, capricious and an abuse of discretion.” In an interview last week, West likened the situation to “giving a fan a football during a football game and letting him walk out of the stadium.” He elaborated: “Government is not allowed to simply shut down this process. They have to finish the game. If they want to say fracking is not safe, then they have to say it. If they want to say fracking is safe within standards, then they have to say it.”
The complaint is scheduled for a hearing Jan. 24. If the case progresses, it will give the plaintiffs leverage of subpoena to produce records and emails that will undoubtedly produce fodder for criticism of the administration’s private handling of the fracking. A likely outcome of both the Wallach v. New York State and the SLPW case is that the fracking story will morph again from a scientific to a legal to a political issue at a time when the governor is vulnerable to outside pressure.