Veil may be pulled from NY’s review of fracking in 2014 State has 45 days to begin releasing files on health review

Developments on the status of New York and shale gas unfolded on two fronts this week.

The first was widely reported: Joseph Martens, Governor Andrew Cuomo’s, environmental chief, told a legislative panel that the state’s moratorium on high volume fracking, now in its sixth year, would last at least another 14 months – through the next fiscal year. As he has done before, at Wednesday’s hearing Martens repeated what was already known – that the state Department of Health was studying the issue. And as before, he offered no specifics.

The second development, which went mostly unreported, may soon pry loose an explanation. Under the threat of a lawsuit by a citizens action group called Seneca Lake Pure Waters Association, Cuomo’s administration settled a case to release administrative documents, letters, and other records detailing the DOH study that will determine the outcome of the governor’s decision to allow or ban fracking – whenever that decision might come. (Details of the settlement, arbitrated in the state Supreme Court, are posted below.) The state has 45 days from January 10 to release some files, and 75 days to release others to comply with open government laws. The SLPWA, represented by attorney Rachel Treichler, will continue to pursue a legal claim if they find the records that the state releases do not comply with the Freedom of Information request outlined in the settlement, according to Mary Anne Kowalski, SLPWA President

Cuomo’s record on the question of whether the state will allow exploration and development of the Marcellus Shale is characterized by a sense of ambivalence, which is justifiable, and opaqueness, which is not.

Shortly after Cuomo began his first term in 2010, he identified the shale gas question as a priority, and insisted that the policy review that began under the previous administration would be expedited under his leadership.  In June of 2012, Cuomo proposed allowing drillers to begin work in communities where town boards favored it, but not in places opposed. But this and any other indication of industry support that Cuomo has uttered has triggered substantial grass roots protests and critical backlash from influential institutions and individuals within the governor’s political base. In short, fracking opponents characterized places where the state would begin permitting high volume hyraulic fracturing as “sacrifice zones” and they questioned why shale gas development would be allowed in some areas if it was unsafe in others.

Since announcing plans in September, 2012 for the Department of Health to become involved in the review, Cuomo and his staff have refused to talk about the fracking issue except in the most vague terms.  Even 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.

A pause in the race to frack may be well justified pending a more thorough review of policy, which is antiquated and ill equipped to handle the pressures from wide scale unconventional shale gas extraction. But withholding information – notably the scope, timing, and protocol for the health review -- from the public has invited only suspicion and attacks from parties both for and against drilling. (In addition to the Freedom of Information challenge by the SLPWA, I recently wrote about a legal challenge to the governor’s approach by landowners, represented by industry attorney Tom West.)

At the 2013-14 budget hearings a year ago, Martens told legislators that the policy review, called the Supplemental Generic Environmental Impact Statement (SGEIS), would be finished in “a matter of weeks.” Mysteriously, that proved to be entirely wrong. The administration’s only explanation has come from the vague declaration from Health Commissioner Nirav Shah, summed up in a quote reported by Gannett’s Jon Campbell last month: “Until I’m comfortable with the state of the science, I’m withholding my recommendation.”

It’s a matter of record that there is no money allocated in next year’s state budget for the necessary administrative oversight for shale gas development, or revenues that might come from it, so Martens was obliged to connect the dots for legislators: No budget allocation means no drilling.

Shah, who holds the keys to the decision based on the outcome of his review, is scheduled to testify on budget issues in front of legislators on Monday. Perhaps he will be willing to pre-empt any outfall from the soon-to-be public records leveraged through the tenacity of the Seneca Lake Pure Waters Association with a clearer report of the scope, timing, protocol, and preliminary findings of the health investigation.

So Ordered Stip.

FOILrequest Final

NY’s fracking future hinges on opaque health review Process clouded by secrecy, group sues to open records.

It was one year ago that state officials added a twist to the protracted controversy over whether and where to allow fracking in New York. National news reports in August and September of 2012 suggested that a decision to permit fracking in certain areas was imminent by or shortly after Labor Day. Labor day came and went, and instead of a decision on fracking, we got an announcement from DEC Commissioner Joe Martens that he would ask the health commissioner to assess whether the administration’s four year environmental assessment on which permitting would be based had sufficiently covered the potential for health problems. To do this, the Department of Health hired three outside specialists to critique the state’s draft review – a 1,500-page document called the Supplemental Generic Environmental Impact Statement - -and make recommendations about where to go from there.

The dilemma in New York, which sits over the Marcellus and Utica shales, is emblematic of a global controversy involving future energy sources, the economy, and public health: Is fracking safe and how do we know?

Now, a year after Martens announced the health review, things are no clearer, and in fact the health department’s involvement and ensuing events have made the outlook for shale gas development in New York foggier than ever. The Cuomo administration has released no time-frame, protocol, or scope for the health review, nor has it been willing to release records detailing the mechanics of the administrative directive. The three outside experts hired to make key assessments -- Lynn Goldman of George Washington University, John Adgate of the Colorado School of Public Health, and Richard Jackson of UCLA — are bound by contracts that include a clause prohibiting them from disclosing or discussing the proceedings or records involved.  (Their contracts expired in May, which means their work finished five months ago.)

In short, the public has been shut out of this process. The reasons for this are easily understood if not easily defensible. Over the last five years, the DEC has submitted for public review two drafts of the SGEIS, and one draft of proposed regulations. Those documents became lightening rods for criticism from anti-fracking activists, who used the formal public comment process for each to marshal an impressive display of opposition. The effort yielded protests, rallies, petitions, and (collectively) hundreds of thousands of written comments that gave the governor a taste of the anti-fracking movement’s considerable grass roots organization and effectiveness in New York, and posed a consuming work load for agency staff. Given this past result, it’s a fair guess that the administration intended the health review as a way to shore up the SGEIS’s viability, but not as a vehicle for more paralyzing public criticism. Regardless of intentions, the administration can’t keep it under wraps forever, and perhaps is already beyond the limits of its legal rights.

A process unanchored to any time line, visible policy protocol, or public framework has supported critics’ claim that the so called health review is little more than political cover for Cuomo to avoid a decision on fracking. Although complaints along these lines from both industry supporters and anti-frackers have been loud and clear, no parties have legally challenged Cuomo’s approach…  Until now.

Last week, the Seneca Lake Pure Waters Association, represented by attorney Rachel Treichler, filed a complaint with the state Supreme Court seeking a hearing on the matter in October. SLPWA is seeking state records 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.” The action follows the organization’s unsuccessful attempts to view records related to the study under the Freedom of Information Law.  The DOH denied the agency’s initial request on April 4 and also its appeal May 16. The grounds for the denial: the information comes under the category of “exempt intra-agency or inter-agency records,” according to the DOH response.

It’s a response that advocates find ridiculous, and the SLPWA appeal spells out why:

Frankly, it is simply not credible that the on-going DOH study of health impacts for the SGEIS does not include any statistical or factual tabulations or data, instructions to staff that affect the public, or final DOH policy or determinations. Quite simply, scientists deal with factual information. If DOH is in actuality conducting a scientific review, the factual information they are considering and the instructions to staff regarding that consideration should be released to the public.

We will soon know whether the SLPWA succeeds in prying loose information and if so, whether that will force the hand of the governor in either moving ahead with a decision or formalizing the review process. The demand to open records is supported by hundreds of members of the medical community, organizations, elected officials, and individuals. They signed a letter to the governor to open the process for public comment and to disclose “the charge that Dr. Shah gave the three outside reviewers who are assisting him and to view the documents that they have been given.” But I have also heard off the record from some fracking opponents who fear efforts to press Cuomo could backfire by changing a dynamic – the governor’s indecision - that has so far worked in their favor by preserving the status quo.

Some fracking supporters feel a more transparent health review will also work in their favor, and for this reason they are encouraging their adversaries’ efforts. A blog, Flare Alert, posted by the firm of industry attorney Tom West, anticipated this result of the SLPWA complaint:  “If this suit is successful, it may provide the pressure needed to put an end to this otherwise unnecessarily protracted process. The alternative appears to be a further delay of the determination by the administration until after the 2014 gubernatorial election.”  Karen Moreau, executive director of the New York State Petroleum Council, said in a forum at Albany Law School this week that a lack of transparency disserves the public, and that she “applauds the group from Seneca Lake” suing to open the health department’s review.

Although the health review remains vague, the Cuomo administration has selectively released documents that suggest where the administration stands. Their tone has been vague and cautious, but they generally support the notion that Cuomo has no intention of permitting shale gas wells without a faithful attempt to gauge health impacts, and that the decision by other states to proceed without this assessment is folly.

This was the theme of a two-page memo released to the press on Feb. 12 from DOH Commissioner Nirav Shah to DEC Commissioner Joe Martens.  Shah advised that he expected to make a formal recommendation “within a few weeks.” 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 in Pennsylvania gas fields, including one by Geisinger Health Systems that will evaluate hundreds of thousands of records of patients. It will be years before the studies are complete, and Shah did not explain how DOH staff might be able to glean useful information from them “within a few weeks.” Although most of us take that phrase to mean 14 days or less, in the place that produces New York policy, it can mean something other than that, and the tone of Shah’s memo to Martens in fact suggested a much longer 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.

He concludes the letter:

From the inception of this process, the Governor's instruction has been to let the science determine the outcome. As a physician and scientist, I could not agree more. Whatever the ultimate decision on HVHF going ahead, New Yorkers can be assured that it will be pursuant to a rigorous review that takes the time to examine the relevant health issues.

A noteworthy figure in this is Richard Jackson, the UCLA health specialist hired to review the state’s work. He has pointed out in his lectures that it's virtually impossible to produce energy without affecting health, pro and con, and trade offs must be known, documented and considered. Although Jackson's contract with the state has expired, Jackson is said to be continuing on a pro bono basis, according to a report from Gannett’s Jon Campbell. And while Jackson is forbidden to talk specifically about the state study, during a webcast earlier this year he generally urged health impact assessments – lengthy formal reviews that include public participation, time-lines and scopes -- for states considering fracking operations: “We need to step up and be much more visible and present and we need to assure that there is a health impact assessment on any proposed hydraulic fracturing or drilling process just as there would be an environmental impact assessment.” (Some of Jackon's specific comments about fracking on his webcast and his overall involvement with the NY's health review was harshly criticized by a group of health professionals for other reasons. More on that here.)

There are many complicating factors, not the least of which is independent funding. At Geisinger, several pilot studies have begun looking into incidences of trauma, perinatal outcomes, asthma and pulmonary disease, according to a report by Ashley Wislock of the Daily Item. But as of this summer, Geisinger had raised only $1.3 million for the first phase of the multi-year study, which is estimated to cost $25 million.

A preliminary report by a team of toxicologists from the University of Pennsylvania found that health concerns were prevalent among drilling communities: 22 percent of the participants in a small pilot study surmise that hydrofracking may be the cause of sinus problems, sleeping difficulties, and gastrointestinal problems. (Another study by the Southwest Pennsylvania Environmental Health Project, found air pollution from gas processing operations to be more of a concern than water pollution for people who felt sick from shale gas development.) But understanding the relationship between drilling and health with any degree of clarity and precision will take years. It will also take funding not rooted in special interests or at least which comes with full disclosure, and that kind of funding is getting scarce.

In short, a year after Martens announced he would shore up the DEC’s work with a health review, the scientific landscape has gotten more complicated, details of that review remain under wraps, and New York’s fracking future looks more capricious than ever. It remains to be seen whether the SLPWA demand to open records will provide a catalyst for movement, and if so in what direction.

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.

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.

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.

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.

NY health officials to release fracking plan by Nov. 6

New York state health officials expect to have terms nailed down within two weeks for several independent experts to review the state’s assessment of health risks associated with shale gas development.

Bill Schwarz, director of Public Affairs for the state Health Department, said today that the review would begin when contract terms were finalized with reviewers – a housekeeping task expected to be completed within a “week or two at the most.” The state will work with three or four experts (Schwarz was unsure of the final number) to review draft of a policy to allow permitting for shale gas development and the controversial practice of high volume hydraulic fracturing in New York.

DEC Commissioner Joseph Martens announced the plan for additional review five weeks 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 most recent draft of the state’s shale gas policy, called the Supplemental Generic Environmental Impact Statement (SGEIS), has not yet been publically released. Initial drafts, released in 2009 and 2011, met with extensive public criticism. (There was no draft released in 2010, as stated in the original version of this post.) During public hearings and sessions, industry representatives, activists, landowners, unions, health professionals, and local and national government officials submitted more than 80,000 comments, all of which DEC staff and consultants must address before the SGEIS is finalized. The original document focused mostly on environmental concerns. The current (unreleased) draft also addresses health issues raised in the public comment period, according to officials.

The plan to enlist a panel of health experts to review the SGEIS was a matter of due diligence, according to Martens. “I want to ensure that the Department has the most legally defensible review so that when the Department issues its final determination on this matter, protracted litigation is avoided, whatever the outcome,” he said in a statement announcing the review last month.

New York state -- which sits over the Marcellus and Utica shale reserves -- has become the showcase of the national debate over the risks and merits of hydraulic fracturing and a related on-shore drilling boom. Until last month, most of the focus has been on Martens and DEC. Now DOH Commissioner Nirav Shah has an influential voice in the outcome. His department is in charge with choosing the reviewers and then ultimately recommending whether the DEC is ready to issue shale gas permits or has more work to do,

More information about the health review, including its scope, timeline, and the names of reviewers, will be released when the contracts are signed. Schwarz characterized the work as a “review of the review” that will essentially tell officials whether the state’s draft document adequately accounts for and mitigates health risks associated with fracking, or whether more work needs to be done and if so what recommendations should be followed.

The state is developing regulations for shale gas concurrently with its environmental review. Officials face a Nov. 29 deadline – a year from the last public hearing -- to complete the review or redefine and restart the rulemaking process. That would mean reopening the process to public hearings and the potential for another barrage of criticism. As recently as last week, Martens offered the possibility that the health review could be completed by Nov. 29 even though details of the plan have not been finalized. Under certain scenarios, that could technically allow permitting to begin by the end of the year, although other factors could discourage it, including administrative hang-ups in the technically and legally dense process, or political pressure after the elections.

The shale gas controversy locally and nationally is defined by influential stakeholders and interest groups allied with bitterly opposing positions. Anti-fracking activists in New York state are seeking a sanctioned and independent Health Impact Assessment, apart from the SGEIS, with its own scope and public review process. Landowners, supported by the industry, have threatened to challenge the state on Constitutional grounds if policy prohibits them from developing their mineral rights. Others are expected to sue if they feel the policy jeopardizes their health and wellbeing. Lawsuits have already been filed on other grounds, with local municipalities challenging the state and the industry’s exclusive control over citing of wells – an issue known as Home Rule.

While the Cuomo administration works through various legal and technical considerations of crafting shale gas policy, it must also be ready for a possible shift in political winds on November 6. If Republicans lose the Senate, then the Legislature would be in a position to mandate more rigorous standards that could effectively block or delay shale gas development. If Republicans hold the Senate, then it is unlikely the Legislature could pass bills to significantly delay drilling.

BREAKING NEWS: NY fracking policy faces do-over... DEC likely to reopen rulemaking process to public

New York officials crafting policy to regulate shale gas drilling amid unanswered health concerns will likely re-open the process to public hearings, essentially guaranteeing more momentum for the movement that has effectively stalled the industry’s advancement into the Empire State for more than four years.

Emily DeSantis, a spokeswoman for the Department of Environmental Conservation, said late this afternoon that agency officials expect to begin a new rulemaking process rather than try to meet a Nov. 29 deadline to complete a regulatory overhaul. The news comes a week after DEC Commissioner Joseph Martens announced that the agency will turn part of the review over to the Department of Health Commissioner Nirav Shah to address persistent questions about how shale gas development and high volume hydraulic fracturing will affect public health in communities where it is allowed.

“Given that DEC has said no regulations or final decision will be issued until the completion of Dr. Shah's review, should high-volume hydraulic fracturing move forward, it is expected that a new rulemaking process would be undertaken,” DEC spokeswoman Emily DeSantis said. That process would include at least one public hearing although DeSantis said no timeframes had been made.

DeSantis was responding to my question about whether the DEC would meet a deadline of Nov. 29 to issue policy that would allow permitting to begin. The deadline, outlined in the State Administrative Procedures Act, mandates that new rules must be finalized within 365 days after the final public hearing, or the state must file for an extension.

The rulemaking process was folded into hearings held last year to assess the environmental impacts of shale gas development. Drafts of that report, called the Supplemental Environmental Impact Statement (SGEIS), have undergone several revisions amid intense public criticism. Since the review began in the summer of 2008, more than 80,000 comments have been submitted.

Technically, the rulemaking process, which will produce regulations to govern shale gas development, is different from the SGEIS, designed as a guideline for permitting. While permitting conditions are ultimately left up to the discretion of DEC officials, regulations are set in black and white, and therefore carry more clout for enforcement.

While the SGEIS has been evolving since 2008 along with the state’s position on shale gas, the rulemaking process began only last year. The public hearings held for the SGEIS also applied to the rulemaking process, which made it subject to the SAPA deadline.

Update added 10:35 p.m.

Attorneys from environmental groups pushing for a more comprehensive review of health impacts were encouraged by the latest indication that the DEC will not begin permitting wells before more vetting and evaluation of concerns. Industry representative, meanwhile, were hopeful that the process would not cause long delays.

Deborah Goldberg, an attorney with Earthjustice, said news that the DEC was considering a new rule making process was “hugely important” to the overall debate. Because of the focus on the environmental review, “the rulemaking didn’t get the attention it needed,” she said. Ideally, she added, the state wouldn’t restart the rulemaking process until the SGIES had been finalized. “Then the public would have the benefit of DEC’s environmental analysis before it offers comment on the regulations designed to prevent and mitigate impacts. DEC would know what should be put into regulations and might save itself some litigation.”

Kate Sinding, a senior attorney with the NRDC, had a similar response. “This is reassuring, suggesting that DOH is not going to rush its review… This also provides the opportunity for the agencies to solicit the input of concerned stakeholders in the particular context of health impacts.”

Both NRDC and Earthjustice are among well-heeled environmental agencies that have taken up the policy debate over fracking in New York as signature environmental campaigns with national ramifications. The issue of fracking and renewed interest in onshore drilling in general have raised the profile of domestic energy use and production, along with unanswered questions about air and water pollution, and skepticism related to industry’s exemptions from federal clean water and clean air regulation and hazardous waste disposal laws. Fracking has enabled large scale energy extraction in places where it has never traditionally occurred. Even in Texas, the Fort Worth area is experiencing drilling-related tensions as the build out of the industry encompasses urban settings.

Martens has left no doubt that his DEC is working under the threat of lawsuits. The health department review was a recently-added component, in part “to ensure the strongest possible legal position for the Department given the near certainty of litigation,” Martens said in a statement last week.

The process will not get any easier. If the debate is reopened for public hearings, the state would be required again to formally respond to comments – an exhaustive process that has previously overwhelmed DEC staff due to the sheer number of responses. Public hearings have also been draws for activists with placards, props, and enthusiasm befitting pep rallies and political conventions.

Given the health and environmental stakes, Goldberg and Sinding are encouraged. “Democracy takes time – and that’s a good thing,” Goldberg said. “The more careful we are, the more information we have, the better chance we have to protect our air, water, and quality of life.”

Several Industry representatives expressed varying degrees of confidence that the process would not be delayed much longer. “The failure to complete the rule-making in a time or starting a new one should not be an impediment to moving forward in New York if and when—hopefully sometime in my lifetime—they finally finish the process,” industry attorney Tom West told GNS reporter Jon Campell today.

The news didn't shake the faith of New York State Petroleum Council Executive Director Karen Moreau that the Cuomo administration was competently handling the review. “Certainly any hint at delay is something that doesn’t help the state’s economic picture, but as far as whether or not this is going to affect the ultimate outcome, I can’t say that,” Moreau told Campbell. “We feel very confident that the process is going to unfold as it should, the health review will be done and a determination will be made at that point.”

On a final note, the policy decisions and industry reaction must be considered in the context of a glut in the natural gas market that has reduced prices, lowered the amounts of lease payments and royalties to landowners, and eased political pressure to move quickly in New York. Natural gas prices move in cycles with demand, so that could change.

NY fracking policy hinges on Health Department decision Evaluation on public health to come, timeline indefinite

The course of the contentious and unsettled policy debate on fracking in New York has just taken another twist. With shale gas permits on hold pending an environmental review now in its fifth year, Department of Environmental Conservation Commissioner Joseph Martens has asked the state’s health commissioner to assess whether the state has sufficiently covered the potential for health problems.

Martens cited two reasons: One has to do with health. The other is about lawyers:

Martens explained in a statement: “I want to make sure that we have done the most thorough review possible, especially when it comes to public health concerns. In addition, I want to ensure that the Department has the most legally defensible review so that when the Department issues its final determination on this matter, protracted litigation is avoided, whatever the outcome.”

New York state -- which sits over the Marcellus and Utica shale gas reserves -- has become the showcase of the national debate over the risks and merits of hydraulic fracturing and a related on-shore drilling boom. Martens and his predecessor at the DEC, Pete Grannis, have been in the thick of it. Now eyes will turn to New York State Health Commissioner Nirav Shah.

Permitting for shale gas was put on hold in the summer of 2008 so officials could better assess the environmental impact of the controversial process to extract natural gas from rock. The policy review, through a document called the Supplemental Generic Environmental Impact Statement, was expected to take a year, but it dragged on. During public hearings and sessions, the public, including industry, activists, landowners, unions, and local and national government officials, submitted more than 80,000 comments, which DEC officials must address before the document is finalized.

The scope of the review was originally environmental, but health advocates have questions regarding the short and long-term impact on public health from all aspects of shale gas development – not just fracking. Those questions, according to Martens, need to be evaluated by the Health Department to “ensure the strongest possible legal position for the Department given the near certainty of litigation, whether the Department permits hydrofracking or not.”

Regardless of the decision to frack or not to frack, the state is girding itself for lawsuits. Landowners, supported by the industry, have threatened to challenge the state if the policy prohibits them from developing their mineral rights. Others are expected to sue if they feel the policy puts their health and safety at risk. Lawsuits have already been filed on other grounds, with local municipalities challenging the state and the industry’s exclusive control over citing of wells – an issue known as Home Rule.

The decision by Governor Andrew Cuomo’s administration now puts Shah’s health department, which so far has taken a low-profile role in the state’s fracking review, in the hot seat. A diverse collection of mainstream medical and health agencies have supported the continuation of New York’s fracking moratorium until health impacts can be documented. The groups include New York State Association of County Health Officials, the American Academy of Pediatrics, the New York State Nurses Association, and the Medical Society of the State of New York. Just before Labor Day, Martens and Shah granted an audience to representatives of several influential environmental groups, including the Sierra Club, Environmental Advocates, the National Resources Defense Council, the Environmental Defense Fund, and Riverkeepers. They asked for an independent Health Impact Assessment that could potentially take into account chemical exposure risks from air and water emissions, industrial accidents, community stresses related to noise, traffic, housing, and population changes, as well as considering the resources necessary to manage them.

In his statement today, Martens made it clear that the state would be making the evaluation, not a third party as requested by the delegation of environmental groups:

I believe deferring to an outside group or entity would be an inappropriate delegation of a governmental responsibility. Government is the public's independent reviewer: that is the essence of the current process. To suggest private interests or academic experts bring more independence to the process than government is exactly wrong. Many experts in this field have an opinion – pro or con- which could influence the process. Nor could one ever be sure that there weren't potential conflicts of interest with outside consultants if they were to actually direct the outcome. It is the government's responsibility to ensure objectivity and a review directed by DEC and the Department of Health is without bias.

Update added Sept. 21, 12:15 p.m.
Not surprisingly, reaction to the news was divided.

Kate Sinding, a senior attorney for the National Resources Defense Council, was part of the group that met with Shah and Martens before Labor Day. Sinding was “cautiously happy” about Marten’s announcement, and the news that Shah would set up an independent panel to advise the agency. Sinding said she expected that stakeholders will be consulted on the makeup of the panel, which will play a critical role. “There are some leading names in the field,” she said. “We’ll have to see what Dr. Shah sets up.”

Leaders of some of the grass roots environmental groups were less happy with the decision to keep the review in Cuomo’s administrative house. Sandra Steingraber, co-founder New Yorkers Against Fracking, said the Health Department’s involvement has been lacking since the DEC’s review began in 2008, and she suspects the DOH has now been called on to “rubber stamp” the DEC’s findings. “Nothing has roused the DOH from its unconcerned slumber,” she said. “The gas-industry-entangled DEC and its silent brother, the DOH do not inspire confidence.”

Responses from the industry were also mixed. Tom West, an industry lawyer, said a health review was unnecessary, because the state would effectively regulate emissions and releases into the environment. “You don’t have a public health concern because there is no impact,” he said. Brad Gill, executive director of the Independent Oil and Gas Association of New York, said the agency supports the commissioner’s decision to keep the process under the rubric of the DEC rather than granting the demands for an independent study. “Environmental regulations, properly enforced and adhered to, protect human health, as well as all natural resources.”