Albany's mixed messages fail to clarify NY fracking future

It sounded like news, but Tuesday’s announcement from members of the Cuomo administration on the fate of fracking in New York is more of the same message clouded by uncertainty and double speak.

With a deadline imminent to finalize regulations for shale gas development in the Empire State, Nirav Shah, Commissioner of the Department of Health, released a letter to Department of Environmental Conservation chief Joseph Martens regarding the status of a long-awaited health review on the safety of fracking. The review is the final piece to the state’s policy, called the Supplemental Generic Environmental Impact Statement (SGEIS), that will make or break shale gas development in New York. Shah’s tone is clearly one of caution, and he suggests that no shale gas development will begin in New York until the monumental task for determining health impacts is complete:

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.

The Department of Health review of the [SG]EIS is on-going. In particular we are focused on the relationship of HVHF to the health impacts of drinking water contamination, but also other areas such as air quality and community impacts.

Shah then indicates the importance of evaluating other major studies examining correlations between fracking and public health. They include a study by the EPA on how fracking affects ground water, which is not expected to be completed until next year. That all sounds good for the anti-fracking movement, and it was received with enthusiasm.

“In short, New York's shale gas extraction moratorium is still holding solid as a rock, as least for now,” anti-fracking activist Walter Hang declared to his followers. “We continue to succeed against seemingly insurmountable odds.”

But Shah’s email was really more of a yellow light than a red light, and he held forth the possibility that it may soon turn green. At the end of his letter, Shah concludes that his review will be complete “in a couple of weeks.” It’s the exact off-handed phrasing that DEC Commissioner Martens used in response to questions about the timing of the SGEIS during a hearing in front of lawmakers last week. And it’s a response that leaves plenty of room to wonder how the health department is going to incorporate the studies that Shah cites, some of which will take years to complete, into its final policy analysis in such a short time. The fact that state has not released any information about the scope or method of the health review leaves room for even more wonder.

In interviews addressing the release of Shah’s letter Tuesday, Martens encouraged the notion that a health study would not necessarily hold up permitting. Missing the deadline for regulations “is not terribly significant in my view,” Martens told WXXI’s Karen Dewitt. “We can move forward on the SGEIS and we can start a new rule making at any point in time … and we would not have to finalize the rules to consider applications.” In other words, regulations are not a necessary requirement for shale gas development, in the short term or long term. In their absence, the industry would be overseen through permitting guidelines spelled out in the SGEIS, which leave the determination of variances and compliance up to the discretion of DEC permitting officials.

The comments of Martens and Shah, taken collectively, leave plenty of room for interpretation. And sure enough, partisans both for and against fracking were quick to interpret the messages delivered Tuesday in their favor. In addition to Hang’s enthusiastic reaction, there’s this from Sandra Steingraber, an influential leader of New York’s anti-fracking movement:

We are confident that such a review will show that the costs of fracking in terms of public health are unacceptable. Commissioner Shah has indicated how important it is to do this right, which means bringing the public and New York State health experts into this process.

And there’s this from Karen Moreau, executive director, New York State Petroleum Council and a fracking supporter:

Given the DEC Commissioner’s assurances that this delay will not mean delays for issuing permits, we respect the administration’s need to finish this last study and finally come to resolution. We also know that it can and must end with a decision to move forward.

Industry attorney Tom West put a finer point on the issue in an interview with Susan Arbetter of the Capitol Press Room by declaring that the industry was better served moving forward without regulations, which he found to be too restrictive.

In the end, it’s unclear whether the news from Albany Tuesday was an attempt to assure stakeholder that officials were duly considering the protection of public health, or perhaps the first step to shed a layer of oversight that the industry did not want anyway. More likely, the events are simply a bid for more time for Cuomo, who remains uncommitted and ambivalent about fracking. We know there is one firm deadline that he faces: His first term as governor ends next year. He will surely have to make up his mind before election time…

Or not.

Activists attack fracking plan with DEC’s own red tape 200K comments on final day puts pressure on NY agency

With one deadline past and another imminent, staffers at New York’s Department of Environmental Conservation attempting to resolve New York’s fracking conundrum find themselves in a familiar position: under pressure.

On the final day for public comment on draft regulations for development of shale gas reserves under upstate New York, members of a well-organized anti-fracking campaign delivered more than 200,000 written comments. Activists carted boxes into the agency’s headquarters in Albany hours before the 5 p.m. deadline. DEC staffers now have 50 days to process and respond to this latest deluge of criticism before they can finalize a plan.

Sean Lennon and Yoko Ono join response at DEC headquarters

Following the direction of New York Governor Andrew Cuomo and DEC Commissioner Joseph Martens, officials have been attempting to complete policy for shale gas development in New York. The focus is on high volume hydraulic fracturing, known commonly as fracking – a process to shatter subterranean mantels of bedrock with pressurized chemical solution to release oil and gas. Advances in fracking technology are enabling exploitation of reserves that were previously inaccessible, and also raising concerns about social and environmental impacts from a new era of mineral extraction on a scale previously unseen. Until New York’s policy is complete, permits to develop the Utica and Marcellus shales extending under upstate New York are on hold.

As of Monday, the DEC had received 1,373 comments, said Emily DeSantis, a spokeswoman for the agency. Today’s special delivery capped off a week of protests that served as a political show of force by both grass roots and institutional fracking opponents, lead by activists well versed in the procedural, political, and scientific aspects of the hotly debated issue. On Monday, Climate Change headliner Bill McKibben spoke on the hazards of fossil fuel extraction and consumption and global warming in front of a sold-out crowd in The Egg, a 1,500-seat performing arts venue in Rockefeller Plaza. On Wednesday, more than 1,500 chanting protesters with signs and banners crammed a quarter-mile stretch of the plaza’s underground concourse, which connects the state Capitol and Legislative Office Building to the convention center where governor Cuomo delivered his State of the State address. The demonstration included an appearance and performance by 93-year-old folk legend Pete Seeger.

Today, the comments were delivered to the DEC with a delegation that included Sandra Steingraber, a biologist, activist and author who has been tutoring followers on the technical aspects of the regulations and encouraging them to respond, and Yoko Ono and Sean Lennon, who are among celebrities who have served as figureheads for the movement.

Sean Lennon at DEC headquarters

While there is bound to be a percentage of comments that are redundant or irrelevant, the agency will still have to read them, sort them, and respond appropriately by Feb. 27. That means that staffers will have to read and sort some 4,000 comments a day. That’s 400 an hour, more than six a minute, or one every 10 seconds. That's assuming 70-hour workweeks with no breaks to answer the phone, eat, or go to the bathroom. Of course, one person will not be processing all the requests. But it’s a daunting challenge even for a qualified team of officials, and it raises the questions of what kind of resources the DEC will be able to summon to meet the deadline. Within this mass of paperworks will be comments that require extra thoughtful analysis and perhaps, if taken in good faith, warrant change to the draft document. In addition to the boxes of comments, the agency will have to respond to “some very detailed technical comments” from environmental groups, including the National Resource Defense Council, Earthjustice, Riverkeeper, Catskill Mountainkeeper, and Sierra Club being submitted this afternoon, said Deborah Goldberg, an attorney with Earth Justice.

“Failure to comply with these requirements is grounds for legal challenge,” Goldberg said.

The sheer volume of responses will pose a significant logistical problem for the agency, which has to respond to all of them before finalizing regulations. The agency issued the draft regulations on Nov. 29 to qualify for a 90-day extension to keep the rule making process from expiring. By law, the agency also had to allow a 30-day period -- from Dec. 12 until today -- for public comment. If the regulations are not finalized by Feb. 27, the agency will have to restart the rule making process and reopen it for public comment.

The regulations, however, are just one piece of New York’s monumental and unprecedented policy overhaul to try to come to terms with shale gas development. The regulations represent the battle of today. A larger and more critical piece, and surely to become the battle of tomorrow, is a review of environmental and health impacts on which the regulations are based. That review, called the Supplemental Generic Environmental Impact Statement (SGEIS), has been in draft form since 2008 and there is no deadline for its completion. In theory, the state could begin issuing permits for shale development after the final version of the SGEIS is released, even if the regulations are not finalized.

That also would provoke an all out effort, including law suits, by the coalition of groups leading the anti-fracking campaign who have faulted the process every step of the way. A salient complaint is that the regulations were issued prior to the final SGEIS on which they were based, forcing the public to evaluate regulations without access to the SGEIS and relevant health and environmental considerations.

In response to a request from leaders of environmental groups, and in anticipation of law suits, Martens announced last fall that the state was hiring outside consultants to review the work of the DEC to ensure that it had sufficiently accounted for public health impacts of fracking. Like the final SGEIS, the scope and results of that review have not been made public.

Even as the regulations are being developed, Cuomo’s administration has indicated through prepared statements that it is undecided on whether it will allow shale gas development. It is a subject that Cuomo rarely addresses publically. He did not mention it in this week’s State of the State address, even though fracking represents the biggest environmental policy fight in the state’s recent history.

Update: John Campbell, Gannett’s Albany reporter, reported today that if DEC officials intend to finalize the regulations by Feb. 27, administrative law requires them to release the final SGEIS (which includes a summary of the health assessment) at least 10 days prior. A mid-February release of the SGEIS would be a clear sign that the agency intends to push forward against the resistance with its plan to open New York of shale gas development. That would be a victory for those who have been supporting development for economic reasons. If the agency lets that window pass, it would signal the opposite.

Cuomo buys more time for New York fracking decision DEC: draft regs do not signal commitment to shale gas

It’s been another frenzied week on the fracking front in Albany – with much sound and fury signifying nothing.

Or not?

Another deadline came and went amid confusion and contention about the timing and protocol of issuing draft regulations for shale gas development in New York. To clear things up, Governor Andrew Cuomo’s administration issued a statement Friday saying everything is still up in the air.

We learned, after the administration filed draft regs to avoid a deadline that would have derailed the epic policy process, that the Governor is still undecided. The draft regulations over which officials at state Department of Environmental Conservation have toiled for the past year are not a reflection of the governor’s intentions to embrace or reject shale gas.

“If DEC decides that hydraulic fracturing cannot be safely done in New York, these regulations will not have any practical effect and the process will not go forward,” read the statement from DEC spokeswoman Emily DeSantis. “If DEC decides that the process can be done safely, these regulations would be adjusted in accordance with the health and safety requirements and issues addressed in the Supplemental Generic Environmental Impact Statement.”

The statement came two days after the administration kept alive the prospect of shale gas development by quietly issuing the pending regulations – still a work in progress -- to meet a Nov. 29th administrative deadline. Failure to meet the deadline would mean the rulemaking process would expire. That would be a relief to fracking opponents, because it would send the administration back to the drawing board and re-open the process to the contentious public hearings that have built momentum for a well organized and motivated anti-fracking movement. The movement has gone nationwide, and New York occupies center stage. For that same reason, missing the deadline would have been a blow to fracking proponents – including groups of landowners eager to lease their land, backed by conservative business interests and the industry’s advertising and lobbying muscle. (Proponents see high volume hydraulic fracturing – a process to extract natural gas from bedrock by injecting large volumes of pressured chemical solution -- as vital to economic development and energy independence. Opponents see it as environmental ruin and building dependence on fossil fuels.)

Nobody knew right up to and following the final hour of the deadline what course Cuomo’s DEC would take, and when the hour came and went, not everybody was even sure whether the state had filed the regs because no official notice was given. While there was no attempt by the governor’s office to defuse the matter, I know from sources close to this that their was a frenzied push by DEC staff to meet the deadline even as representatives from influential environmental groups made last ditch calls to urge them to hold off, at least until the agency could receive analysis of a panel of independent health experts commissioned to review DEC’s policy.

So why didn’t the DEC issue a statement to clear things up in advance of all this rather than switch to damage control amid protest that followed?

An obvious read of the situation is that meeting the deadline represents a step toward rather than a step away from shale gas development. Why would the agency be sweating the details over thousands pages of dense policy – flawed in the eyes of some and sound in the eyes of others and certain to meet legal challenges from many angles -- if officials were ready to shelve the entire regulatory project that has been under fire for more than four years?

The answer is that Cuomo himself -- two years away from a gubernatorial election and/or possibly four years away from a presidential bid -- is buying as much time as he can while attempting to manage the political forces at work that will influence his career and shale gas development in particular. Regardless of the outcome, he will have to answer two critical political constituencies. Well-healed and internationally renown environmental groups such as the National Resources Defense Council (among others) and Big Oil and the business lobby. Both of these institutional forces are backed by impassioned grass roots bases. Adding to the complications: Cuomo cannot yet gauge Legislative positions, as control of the Senate remains undecided.

The action of the last week tells us, if anything, that Cuomo is taking the fracking conundrum day-by-day if not hour-by-hour. The decision to meet the deadline by issuing a draft of the regs sends a signal to industry supporters that the administration is moving forward in good faith to get policy in place that would allow shale gas development. The statement that came retroactively to explain the decision was clearly intended to calm an uprising with the anti-fracking movement by suggesting that the administration has not passed the point of no return.

Here is the entire statement from the DEC:

The New York State Department of Environmental Conservation DEC has filed a Notice of Continuation with the Department of State to extend the rulemaking process by 90 days in order to give New York State Commissioner of Health, Dr. Nirav Shah, time to complete his review of the draft Supplemental Generic Environmental Impact Statement. This extension is necessary, in part, because Commissioner Martens requested and Dr. Shah agreed to provide an additional review, in consultation with outside experts, of whether DEC has adequately addressed potential impacts to public health. This filing with the Department of State merely extends the rulemaking period to enable Dr. Shah to complete his review and DEC time to take into account the results of Dr. Shah’s review and continue to consider the potential impacts of high-volume hydraulic fracturing.

In order to receive the needed extension, DEC was required by law to refile the draft regulations along with responses to public comments received during the public comment period, and preliminary revisions, responsive to those comments. The refiled rule does not reflect current DEC policy with respect to whether or not hydraulic fracturing can be done safely in New York. That determination will be based on the findings of the environmental impact statement and Dr. Shah’s public health review of that document.

DEC will not take any final action or make any decision regarding hydraulic fracturing until after Dr. Shah’s health review is completed and DEC, through the environmental impact statement, is satisfied that this activity can be done safely in New York State.

If DEC decides that hydraulic fracturing cannot be safely done in New York, these regulations will not have any practical effect and the process will not go forward. If DEC decides that the process can be done safely, these regulations would be adjusted in accordance with the health and safety requirements and issues addressed in the Supplemental Generic Environmental Impact Statement.

New York’s fracking clock reset for end of February

The Cuomo administration has met a deadline to file a draft of its regulations to govern shale gas development, giving the state Department of Environmental Conservation an extra 90-days to finish the job that it began in 2008.

Several sources close to developments told me that today that the regs were filed with the Department of State yesterday, although the process has inexplicably been kept out of the public eye. According to protocol spelled out in the State Administrative Procedures Act (SAPA), the draft regulations will have to be publically posted by December 12 – two weeks after they were filed.

[Update 11/30/12: The regs are now available online by clicking here. Thirty-day public comment period will begin Dec. 12]

The state filed for the 90-day extension to allow time for an independent panel of health experts to review draft policy after environmental groups raised concerns it insufficiently addressed concerns over fracking’s impact on public health.

The regs are being developed as the state works on a review of the impacts of hydraulic fracturing that it began in the summer of 2008, called a Generic Environmental Impact Statement (SGEIS). While there is no firm deadline to complete the SGEIS, the Administrative Procedures Act prevents rules from being finalized before the environmental review is complete. Although Cuomo has been silent on the controversial issue, his administration’s compliance with the rulemaking deadline sends a signal that he intends to complete the review and the regulations by March, at which time permitting for High Volume Hydraulic Fracturing could begin in New York after being on hold since the shale gas rush began four and a half years ago.

There are other scenarios, however. If the work is not completed within 90 days, the administration could still let the process expire and reopen the process for public hearings. (Public hearings allow residents to speak in front of DEC staff in an open forum while their comments are recorded on the record and tends to be a much bigger tool for activists than a public comment period, which allows comments in writing only.)

The administration’s efforts to meet yesterday’s deadline shows that officials are doing what they can to keep the process from expiring and reopening the hearing process. The biggest wild card, however, remains with the Legislature, which has been under pressure from both drilling opponents and proponents. Leadership in the Democratic controlled Assembly have shown a willingness to ban fracking, while the Republican controlled Senate has been supportive of drilling. While Democrats still control the Assembly, control of the Senate following the recent election will be unknown for some time.

NY to file 90-day extension to finalize fracking rules

With a deadline imminent, New York State environmental officials will file for an extension to allow fracking regulations to be finalized while officials finish evaluating health risks associated with the controversial practice to extract gas from bedrock.

DEC spokeswoman Emily DeSantis conveyed the information in an email late this afternoon. The plan to file for an extension comes as an alternative to letting the rulemaking application expire and starting again – an option that would require reopening the process to public hearings that have become a lightening rod for dissention.

The deadline is Thursday, a year after the last public hearing on the issue. Filing for an extension seems logical from an administrative standpoint, but it comes with a key requirement: releasing a draft of the regulations for public comment. That requirement is at the center of a new upwelling of protests by environmental groups who don’t want any regulations released – even in draft form-- before a panel of independent experts have assessed how effectively the state has addressed health risks associated with high volume hydraulic fracturing.

Kate Sinding, senior attorney for the National Resources Defense Council, responded in a post on the agency’s blog, the Switchboard, that the decision to move forward rather than step back from the deadline

would also make the governor the Grinch who stole yet another Christmas from New Yorkers by delivering a set of unfinished revised rules – ones that don’t reflect the results of the on-going health and environmental reviews – and asking the public to weigh in on them over the holidays. This means fewer people are likely to be able to voice their concerns in time for the state to consider them as it finalizes the rules.

The choice will be welcomed by industry proponents eager for shale gas development to begin in New York because it sends a signal that the Cuomo administration is determined to push ahead with a plan to finalize regulations by the end of February – timing that corresponds with the completion of the health review. The Join Land Coalition of New York, a group of property owners lead by Broome County Landowner Dan Fitzsimmons who are eager to secure gas leases, issued a statement that the group is “cautiously optimistic” that the four and a half year process is nearing an end, and that “We are encouraged that the Governor and DEC have a plan to avoid expiration of the regulatory review.”

The process to adopt regulations – governed under the State Administrative Procedures Act – has progressed concurrently with an environmental review of fracking, called a Supplemental Generic Environmental Impact Statement (SGEIS). But unlike the SGIES, the SAPA rulemaking process must be completed within a year or restarted. The SGEIS, which is used to establish permitting guidelines in the absence of regulations as well as a tool to inform policy makers who are drafting regulations for a new industry, has been revised multiple times since 2008 after contentious public hearings and comment periods. Permitting remains on hold until the SGEIS is complete. That also could be in February, depending on the assessment and recommendations issued by the panel of health experts.

“DEC will file a notice for a 90-day extension allowed by state law to continue to work as [Department of Health Commissioner] Dr. Shah’s health review of the SGEIS comes to completion,” Emily DeSantis said in an email this afternoon.

NY's fracking struggle moves past Nov. 29 policy deadline Questions on health could prompt indefinite delay

Mired in controversy and unable to make a Nov. 29 deadline to finalize New York's shale gas regulations, Gov. Andrew Cuomo’s administration now has to decide whether it will seek a 90-day extension or simply back away and start again.

One thing we know, the administration is sharing very little of the internal mechanics of the policy struggle, leaving stakeholders to connect the dots and read what they can into the governor’s vague statements. In an interview with radio host Fred Dicker on WGDJ AM today, Cuomo confirmed what was widely anticipated -- that the administration would be unable to meet a Nov. 29 deadline to finalize shale gas regulations.

“We want a proper process,” Cuomo said. “We want it expeditiously as possible. I don't see how we get it done by next week."

The administration now faces the choices of letting the rulemaking application expire and restarting the contentious process – including more public hearings. Or it can file for a 90-day extension, which will require releasing a draft of the regulations and opening the process to public comment. (More on those options here.)

Regardless of future options, missing the deadline sends a signal that the state is unprepared to move foreward with shale gas development.

Kate Sinding, senior attorney for the National Resource Defense Council, has met with DEC officials regarding the process in previous months. Sinding reported that the agency has promised the NRDC and several other influential environmental groups that it would not move forward with policy decisions until it had accounted for health risks associated with high volume hydraulic fracturing. To that end, the agency has commissioned a group of experts to review the DEC’s work and make recommendations, possibly by late February. (More on that here)

Sinding said today she believes the DEC will not seek an extension, because that would require releasing regulations that have not taken into account recommendations from the health panel. And that would be acting in bad faith.

“The anger they would provoke (among environmental groups and ant-fracking activists) would be very significant,” Sinding said. “The agency has taken the position that is not going to be subject to pressure or rush this through, and I don’t expect that to change.”

Cuomo, meanwhile, has already provoked the anger of industry supporters by conceding the Nov. 29 deadline. Drilling proponents and industry groups, including the Joint Landowners Coalition of New York and the Independent Oil and Gas Association of New York, have been urging the administration to finalize regulations to open access to New York’s portion of the Marcellus and Utica shales – two of the largest shale gas reserves in the world -- sooner, rather than later. Today Dan Fitzsimmons, head of the Join Landowners Coalition, wrote in an open letter to the governor that the state has already considered 80,000 comments, and delay beyond the Nov. 29, deadline "is a breach of faith in our government and flies in the face of the promise that New York is beyond its dysfunction and truly open for new business investment.”

As health panel reviews NY fracking policy, what’s next? Timing, scope, personnel signal Cuomo’s ambivalence

After being leaked to the press last week, the names of a blue-ribbon panel commissioned to evaluate the soundness of the state’s policy on shale gas are finally public. And with that, Governor Andrew Cuomo continues the appearance of moving his policy on fracking forward while remaining fundamentally uncommitted. (See previous post about his ambivalence here.)

At stake is exploitation of the Utica and Marcellus shales, world class carbon reserves extending under the Southern part of New York. Joe Martens, Commissioner of the state’s Department of Environmental Conservation, announced in mid-September that he was calling on the Department of Health to review public health risks associated with high volume hydraulic fracturing, in part to fend off possible law suits seeking to challenge the integrity of the state’s controversial policy development, now in its fifth year. The health review is headed by DOH Commissioner Nirav Shah, who is overseeing the work of an ad hoc panel of independent experts to advise the state.

The names and qualifications of the panel have been a matter of speculation since the review was announced in September until this past week, when an anonymous state official leaked the names to the Associated Press. Now we know panelists are John Adgate, chairman of the Environmental and Occupational Health Department at the Colorado School of Public Health; Lynn Goldman, dean of George Washington University’s School of Public Health and Health Services; and Richard Jackson, chairman of the Department of Environmental Health Sciences at the University of California Los Angeles’ Fielding School of Public Health.

The credentials and integrity of the group were lauded by fracking critics, fearful Cuomo would use the panel to rubber stamp questionable policy. Drilling proponents criticized the choices. That reaction, like the reaction of partisan parities to the appointment of a judge, in itself gives clues regarding the panel members’ professional predisposition and sympathies. More on that in a moment.

Who they are is important. But equally important is the task to which they have been assigned, the time they have been given to do it, and the influence they could bring to bear on the process. The governor’s office is sharing none of this publically, leaving reporters to piece together possible scenarios.

Technically, the state faces a November 29th deadline to finalize the regulatory framework for shale gas development in New York. If it misses the deadline, the rulemaking process will expire and officials will have to revamp proposals and reopen the public hearings that have become a lightening rod for well-organized public opposition. But it most certainly will take longer than 12 days to put New York’s regulatory house in order. How much longer depends on a collection of unresolved administrative and legislative issues. Economic pressures tied to the price of natural gas, now very low, may also come into play.

Here are some possible outcomes:

Meeting the Nov. 29 deadline: The state issues its regulations later this week or early the following week, narrowly sidestepping the mandate to restart the contentious and time-consuming public process. For this to happen, the advisory panel would have to fast-track a complicated and controversial review, exposing the administration to more criticism from activists that the panel was never intended as anything more than political window dressing. The state could also issue the new rules before the health review is complete without technically violating the law. That would come with a political cost to Cuomo because Martens has told influential environmental groups that the state would not proceed until health issues were taken into account.

Seeking an extension: The administration could file paperwork this week or early next week for a 90-day extension. That would require submitting updated drafts of the proposed rules and allowing 30-days for written public comment. This would open the door for more criticism and delays, but to a lesser degree than would public hearings. As reported by Jon Campbell of Gannett’s Albany Bureau, panelists expect their work to be finished in mid February, timing that would fit with a possible extension. Moreover, the extension would allow Cuomo to test the political water of the new Legislature. Control of the Senate still remains up in the air weeks after the election. Legislation that will influence shale gas policy in New York on issues ranging from moratoria to health studies to home rule depends on the outcome. Regardless, waiting for the Legislature to pick up the political hot potato may deflect some pressure from Cuomo. Or not.

Letting the proposed rules expire: This would essentially send the rank and file policy makers, who have already spent years attempting to evaluate and account for environmental risks of shale gas development, back to the drawing board. Updated policy would have to be re-introduced and subject to more public hearings, which have proven to be an effective tool for fracking opponents to derail or slow shale gas development. The process has already been delayed for years by 80,000 comments submitted in previous hearings and comment periods by critics on both sides of the issue.

Cuomo’s selection of panelists, when finally revealed last week, was met with approval from fracking critics and disapproval from supporters.

Energy in Depth, a gas-industry-funded group, questioned the integrity of previous work by Adgate, co-author of a Colorado School of Public Health study in March implicating shale gas development as a public health threat. As reported by Campbell: “It’s simply hard to imagine how a panel including the author of the most controversial health impact study in the nation ... will produce anything that resembles an objective review,” said Energy in Depth spokesman John Krohn. The Joint Landowners Coalition of New York, a pro-fracking group, issued a statement along similar lines: “We … are concerned that one member of the committee is the author of a Colorado study which has been widely criticized.”

Public health experts and anti-frackers, meanwhile, praised the panel’s qualifications. Sandra Steingraber, an ecologist and founder of New Yorkers Against Fracking, characterized panel members as “luminaries” in the field of public health, and well equipped to fully assess the risks of fracking. But, she added, the limited scope and timeframe of their charter does not appear to allow that. “The people are luminaries,” she said. “The process is a dismal fog. There is no transparency whatsoever.”

Lack of more detailed information about the scope and mechanics of the process also drew criticism from other quarters. On Thursday, more than 90 medical professionals publically called for a more independent thorough and transparent process. “New York’s community of medical professionals reiterate our call for an independent, comprehensive health impact assessment of these risks and their attendant costs,” Andrew Coates, a physician at Albany Medical College, said in a statement.

So we approach the holidays with state agencies spread thin with Hurricane Sandy recovery efforts, the shale gas dilemma far from resolved, political stakes higher than ever, and an important deadline looming.

New York fracking health study takes back seat to Sandy “All hands on deck” for officials coping with housing crises

Details of a pending evaluation by health experts to gauge the soundness of New York’s state policy on fracking will be delayed as officials deal with a health crisis in the wake of tropical storm Sandy.

Bill Schwarz, director of Public Affairs for the state Health Department, gave me a brief status report today from the New York City metropolitan area, where local, state, and national government agencies continued storm relief efforts. Officials from the state Department of Health were overseeing the evacuation of several nursing homes and other health facilities without power in anticipation of more bad weather and cold temperatures this week.

“It’s all hands on deck,” Schwarz said. He added that administrators are still working to finalize contracts with independent consultants to evaluate whether the state DEC’s pending shale gas policy is sufficient to evaluate and mitigate associated health risks. As reported in a previous post, the contracts were originally expected to be completed by today.

DEC Commissioner Joseph Martens announced the plan for additional review two months ago with mounting pressure from environmental groups pushing for a more complete record of how fracking might affect public health. Activists from both grass roots and mainstream environmental organizations are urging the state to quantify a range of risks such as chemical exposure from air and water emissions, industrial accidents, community stresses related to noise, traffic, housing, and demographic changes, as well as considering resources necessary to manage them.

The state faces a Nov. 29th – -- a year after the last public hearing -- to finalize regulations for the industry, or restart the process. The rulemaking process is being conducted simultaneously with an environmental review, called the Supplemental Generic Environmental Impact Statement. Martens has not said whether the state expects to meet the Nov. 29th deadline.

November 29 deadline looms for final NY fracking policy Cuomo administration may file for 90-day extension

While Governor Andrew Cuomo refuses to say when or whether New York will begin permitting shale gas wells, the answer lies in a little-known fact: his administration faces a Nov. 29 legal deadline to finalize a decision.

An obscure provision of a technically-dense law provides the most concrete clues about when the public can expect Shale Gas policy in New York. The law is called the State Administrative Procedures Act (SAPA). Several lawyers have called my attention to Section 202, which spells out how administrative agencies are required to go about rulemaking. Specifically, the provision states that regulations have to be finalized one year from the last public hearing on the issue under review unless an extension is filed.

It’s a fact that has gained little attention beyond the circle of lawyers who have been following the issue closely as they develop strategy in support or against fracking in New York.

Helen Slottje, an attorney with the Community Environmental Defense Council, told me she is expecting the policy to be released on or about Nov. 29. This is precisely one year from the date of the last public hearing on the state’s review of fracking policy and, in Slottje’s view, a politically opportune time to release a controversial policy decision, because it’s “a time when most people have a ton of other things to do, the elections are over, and the legislature is not in session.”

The DEC also has the option of filing for a 90-day extension. That would make the deadline March 1, or thereabouts.

The DEC began its formal review of shale gas policy under the David Paterson administration in summer of 2008 through a document called the Supplemental Generic Environmental Impact Statement (or SGEIS). Originally, the SGEIS was a vehicle to update permitting guidelines for shale gas wells and an amendment to regulations dating to 1992 governing conventional well development. But Cuomo’s administration, wary of legal challenges to derail the shale gas industry’s advancement into New York, began a formal rulemaking process – folded into the environmental review -- to update regulations. Public hearings scheduled for the SGEIS also satisfied the requirements for the rulemaking process, thereby subjecting the entire policy package to the SAPA deadline. If the DEC misses the Nov. 29 deadline without filing an extension, the agency could face a do-over of the review --- including the public hearings that have produced more than 80,000 public comments and critiques that have already delayed the process for years.

The scope of the review was originally environmental, but health advocates have also gotten involved by posing questions about the short and long-term impact on public health from all aspects of shale gas development – not just fracking. Fear of law suits is thematic in the agency’s response. Last week, DEC Commissioner Joseph Martens announced that, because of those questions, the policy proposal will now be evaluated by the Health Department, which will assemble an independent panel, to “ensure the strongest possible legal position for the Department given the near certainty of litigation, whether the Department permits hydrofracking or not.”

Several lawyers questioned whether the state can complete the health review with due diligence before the Nov. 29 deadline.

“They have, of course, been clear that they won’t issue the final regulations until the health review is complete,” said Kate Sinding, a senior attorney for the National Resources Defense Council – one of the agencies that pushed for the health review. “Whether they try to shoehorn that in between now and November 29th … or opt to extend the deadline by 90 days, which they can legally do, we don’t know.” She doubted the agency could make the Nov. 29th deadline while acting in good faith to complete the health review. “It seems unlikely that they could do what needs to be done to accomplish the objectives of a real Health Impact Assessment in such an abbreviated timeframe.”

Tom West, a lawyer and lobbyist who represents the industry, said he didn’t expect the review to be complete before the first of the year. In that case, West said the agency “can let it (the rulemaking application) lapse, republish with a 30 day public comment period that gets them a 90 day extension, or re-propose the rulemaking if there have been substantive changes, which effectively starts the process over.”

Chris Denton, a lease attorney in Elmira, predicted the policy review was drawing to a close after more than four years. Denton said he believes the Cuomo administration has quietly factored the Nov. 29 deadline into its overall strategy. “Cuomo’s not going to miss this deadline,” Denton said. “It sends the wrong message.”

While the pending policy package is a central component to a tactical fight to delay or expedite shale gas development in New York, there are other factors. The price of gas has fallen with a market glut. With that, political pressure has eased along with the pace of aggressive prospecting, exploration, and lucrative lease offers that marked the 2008 land rush.

Cuomo also faces the uncertainty of whether Democrats, who have generally opposed a rush to begin permitting gas wells in favor of more study, will control the Legislature after elections, or whether it will remain split. The anti-fracking movement has been keeping pressure high by effectively challenging the credibility of the DEC, and specifically the agency’s claim that it has a spotless record regulating the gas industry. This week, Walter Hang brought to light more records of spills and abandonment – ample evidence, he says, that the DEC is ill-equipped to handle conventional shale gas development, much less the more intense and wide-spread operations of a shale gas play and the legacy it may leave the next generation.

As president of a data base firm called Toxic Targeting and formerly a community organizer with New York Public Interest Research Group, Hang is a long-time government watchdog and industry antagonist. The story with his relationship with the DEC is told in Under the Surface, and this week’s developments are a continuation of that battle. Hang’s company tracks corporate pollution through government records, and this week he released annual reports and other information that show 4,800 known abandoned wells, and a like number yet to be discovered in woods, backyards, playgrounds and under buildings. Unplugged or improperly plugged wells can cause explosions and risks to water supplies by providing a pathway for methane to move into enclosed spaces and for hydrocarbons and other toxic pollutants to migrate into the water table.

The problem is obscured by lack of reporting requirements and enforcement. When claims of water contamination are reported, the DEC Mineral Resources Division, the lead investigative agency, often leaves it up to the industry to settle with property owners who face a high burden of proof and experienced industry legal teams. Claims of liability from explosions face the same problem. Some of these cases were picked up by local health officials frustrated with the DEC’s denial of problems. As previously reported in this blog and in Under the Surface, William T. Boria, a water resources specialist at the Chautauqua County Health Department, tracked more than 140 complaints related to water pollution or gas migration associated with a boom in nearby conventional drilling operations (prior to shale gas development). In a 2004 memo summarizing the issue, he concluded “Those complaints that were recorded are probably just a fraction of the actual problems that occurred.” County health officials tabulated information on 53 of the cases from 1983 to 2008 on a spreadsheet, including methane migration, brine pollution, and at least one in which a home had to be evacuated after the water well exploded. “A representative I spoke with from the Division of Minerals [of the DEC] insists that the potential for drinking water contamination by oil and gas drilling is almost non-existent,” Boria wrote in his memo to a party whose name was redacted. “However, this department has investigated numerous complaints of potential contamination problems resulting from oil and gas drilling.” (Pennsylvania has similar problems. According to a briefing by the Department of Environmental Protection to Pennsylvania state’s Oil and Gas Technical Advisory Board, a group of state government–appointed industry representatives that advises the agency on technical and policy matters, methane migration from gas drilling, had “caused or contributed to” at least six explosions that killed four people and injured three others over the course of the decade preceding full-scale Marcellus development. The threat of explosions had forced 20 families from their homes, sometimes for months. At least 25 other families have had to deal with the shut-off of utility service or the installation of venting systems in their homes. At least 60 water wells -- including three municipal supplies-- had been contaminated.)

In addition to the orphan wells in New York, Hang most recently uncovered agency documentation that showed vegetation killed by leaking waste pits, brine leaking from rusted storage tanks, and crude oil contaminating residential wells and streams.

“Governor Cuomo can talk all he wants about good science,” Hang said. “This data shows that the DEC does not enforce the law.”

Questions persist whether the agency has the manpower to enforce regulations once they are drafted. In 2010, DEC Commissioner Peter Grannis was fired by Larry Schwartz, Paterson’s secretary (and now Cuomo’s secretary) after a memo by Grannis was leaked that suggested the DEC, decimated by cuts, would lack the ability to effectively regulate.