Monday, January 13, 2014

Will law suits bring transparency to NY Fracking decision? Challenge tests Cuomo’s rights to keep review private

New York’s Governor Andrew Cuomo has avoided a decision over the polarizing and potentially damaging issue of fracking for his entire first term, so there is little expectation that he will voluntarily change course during an election year. Yet the governor’s handling of the fracking dispute may become a prominent issue as election time nears, pending the outcome of two law suits that could pry lose information.

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.


  1. I'd say Cuomo is playing this well - for a political hack. There's a moratorium on fracking that has his name on it. The Marcellus shale gas potential in New York is starting to be questioned -except for several counties in the southern tier. Pennsylvania needs a customer badly. Bloomberg is gone. Christie may be gone. Who knows what could get unearthed during discovery, i.e. communications between NY/NJ regarding gas transportation and LNG processing. Wallach v. NYS could force Cuomo's hand, but that would give him cover with those against fracking New York. He could say "hey, I got to approve drilling - it's out of my hands."

    As far as leadership. It's pretty clear that the democratic leadership council (DLC) is pro fracking and oil and gas in general. Hillary Clinton would put environmentalism on the back burner during her campaign - with the whole her being a woman thing. I'm not sure how Cuomo sits within DLC's graces, but Obama, Clintons et al are opportunists over environmentalists. Obama's entire energy plan was written by API/ICF International with EDF/NRDC/Sierra Club giving cover. Cuomo could smarm and slither his way for 12 to 18 more months before accepting the Vice Presidential candidacy behind Hillary.

  2. “Bloomberg is gone…” Good point. I will add that may change political calculus slightly, but won’t change NYC’s need for cheap energy.

    1. One would hope state and federal politicians could be held to a higher standard than municipal ones.

      The second to last paragraph quoting Tom West is really sad. And not just because of his confusing football analogy. It kind of defines the regulatory problem with fracking specifically and the entire field of environmental protection in 2014 America in general.

  3. Cuomo is a slick politician. He is waiting for the Court of Appeals in NY to decide whether towns have "Home Rule" by banning any activities associated with HVHF. He will wait, like a snake, and let the courts decide. Then he will act. If the courts decide that fracking bans and Home Rule stand, Cuomo will allow fracking if your town wants it and no fracking if your town doesn't want it. If the courts side with Norse Energy and Tom West's argument, then Cuomo will likely lift the moratorium. Let the law suits begin and the lawyers get fat and happy.

  4. What I label Cuomo isn't for polite conversation. He has obviously taken steps to hide the bad news that fracking cannot be done both cheaply and healthy at the same time. Fracking won't happen on his watch, but he doesn't have the clout to stand up for what is morally right. He has proven this in the NY SAFE Act fiasco as well.