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.

Will NY natural gas future break from problems of its past? DEC lacks funds to plug tens of thousands of leaky wells

Discharge from this abandoned well killed an acre of vegetation in Oneida County

The debate over natural gas development in New York has mostly been about the future. But residents living over New York’s abundant gas reserves must also figure out what to do about the past.

Regulators estimate there are 57,000 abandoned and orphan oil and gas wells statewide – many of them leaking. Of these, the state has listed 4,722 as a priority due to health and safety risks, but lacks funding to plug them. Wells tend to leak over time as casings deteriorate, raising risks of explosions and providing conduits for water contamination from methane, brine, arsenic and other pollution. The problem is summed up in this 2002 report from the New York Department of Environmental Conservation: “Abandoned wells can leak oil, gas and brine. They can contaminate groundwater and surface water, kill vegetation and cause safety and health problems. Underground leaks may go undetected for years before their damage is discovered.”

It’s a warning supported by facts in New York and neighboring shale gas states, where problems have ranged from drinking water pollution to fatal explosions. (More on that in a bit.)  Unlike many industrial hazards, abandoned wells lurk in unexpected places. (Map here.) They have been found at playgrounds and parking lots, inside buildings, in wetlands, underwater in creeks and ponds, in wooded and brushy areas and in residential yards, according to DEC records. DEC staff discovers more of them every year during scheduled inspections or while investigating complaints. The most threatening cases go on the state’s priority list to be plugged “whenever funds become available.”

So far, funds have not become available, even as the state considers plans to begin permitting new drilling on an unprecedented scale for operators targeting the Marcellus and Utica shales, extending under most of upstate New York.

The abandonment problem is rooted in the economics and regulation of gas production. As wells age and production declines, they become maintenance liabilities, which encourages their sale to whomever will buy them -- typically smaller, less established firms or even homeowners. In the end, the parties left holding them often drop them from their books or go bankrupt.

Theodore Loukides, head of the Oil & Gas Compliance and Enforcement Section for the DEC, issued a bulletin earlier this year notifying operators that “given the state of awareness surrounding energy development, the plugging of legacy wells will likely remain a high-profile issue of years to come.” In the bulletin, published in a newsletter for the Independent Oil & Gas Association of New York, he asked operators for input on plugging, and new initiatives focusing on waste, bulk storage, spills, and proper submittal of annual reports.

DEC spokesman Peter Constantakes didn’t return calls or emails about the subject this week. Yet the “state of awareness” that Loukides delicately mentions is due to the contentious issue of whether Governor Andrew Cuomo will finalize permitting guidelines for high volume hydraulic fracturing necessary to explore and produce the Marcellus and Utica shales, which collectively run under a good part of upstate New York. Since shale gas became a major political issue in 2008, the legacy of “old oil fields” is something you rarely, if ever, hear DEC officials talk about publically, even though the problem has been neatly summarized in prior studies and annual reports.

The 1995 annual report for the Minerals Resources Division was explicit in this warning ,which was repeated verbatim almost a decade later in a 2003 report commissioned by the state Energy and Research Development Authority:

One of the biggest challenges facing the oil and gas regulatory program is the growing liability of idle and abandoned wells. In most cases financial security, even for operators in compliance with current regulations, does not provide sufficient funding to plug the covered wells. When operators default on their tax bills and counties foreclose on properties that contain unplugged wells, those wells become a liability for local taxpayers. This is not a hypothetical worst-case scenario, but reflect current events already happening in the counties. We need a creative approach to develop new solutions to this problem, and hope to productively work together with all stakeholders in this effort.

Fixing the problem will require significant regulatory reform, according to Ron Bishop, a professor of chemistry and bio chemistry at SUNY Oneonta who has been studying the orphan well issue in New York. In a white paper for a land preservation group called Sustainable Otsego, Bishop explains:

Unless the state of New York does something to dramatically alter the long-standing culture of neglect, we can reasonably expect oil and gas industry operators to ignore any new standards just as they systematically ignore existing standards today. 

The problem extends from the pre-regulatory era to current times. It’s common practice for larger operators to sell off wells near the end of their life cycle to smaller firms with less capitol. The sale provides the seller with a better financial outcome than holding onto the dwindling returns and provides a buyer – typically one with limited capital -- a well that it doesn’t have to drill. Bishop cites this explanation from Lou Allstadt, a former senior executive with Mobile Oil:

The original company uses the cash to finance new investments. The buying company operates with lower costs because they spend less on maintenance and safety items and they have fewer well-qualified people to pay. The chain may end there or continue through smaller and ever lower cost operators who do no preventive maintenance at all, do the bare minimum of repairs to keep the well going and eventually walk away, maybe after plugging the hole as cheaply as possible and maybe not plugging at all. The smaller companies often operate each well or group of wells under a separate corporate entity that is always stripped of cash, so if something goes wrong there are no assets to pay off claims. Not all small operators will do this, but it happens. 

Shale gas wells are more prone to this outcome than yesterday’s conventional wells because production from shale, known as tight gas, tends to taper more quickly than conventional wells, according to Bishop.

Now for more on the legacy of problems in New York and Pennsylvania: A starting point is in 2008. The first wave of aggressive shale gas prospecting in New York raised many questions with residents, and DEC staffers staged informational meetings at town halls throughout the Southern Tier to address them. Officials from the Minerals Resources Division pitched shale gas as a clean, problem free and well-regulated industry. They avoided mention of the tens of thousands of orphan wells that in fact represented a serious, chronic, and concrete problem.

Around this time Walter Hang, an environmental researcher, began uncovering a history of neglect that undermined the DEC’s message and sowed early seeds of public doubt about the transparency of both the industry and those who oversee it. Hang is president of Toxics Targeting, a firm that identifies and tracks pollution liabilities for developers and municipalities.

Hang and others who tried to quantify and characterize the problem had tough going, due to a records system that was decentralized, archaic, and often incomplete with files scattered among disparate government offices, private companies, and court rooms. Still, Hang culled 270 records documenting mishaps —some from newspaper clippings, dossiers at health departments, complaints filed with elected officials, and some showing up on the DEC’s database for spills. Many of the problems -- including fires, blow-outs, methane migration, and spills relating to wells or infrastructure –- remained unresolved and partially documented.

Hang’s analysis, which I wrote about in a series of reports for the Press & Sun-Bulletin and later in Under the Surface, drew sharp criticism from industry and regulators who dismissed it as overblown.  A few hundred cases, they said, represents a negligible proportion of the tens of thousands of wells drilled through New York’s history. Still, the cases were troubling then and they are troubling now, mostly because they represent a subset of a greater number of problems that will remain unknown without a reliable and comprehensive system to document them.

In matters of transparency, the oil and gas industry operates mostly on its own terms.  It works on private land under contract with landowners. Chemicals pumped into wells are exempt from the Safe Drinking Water Act, and waste that comes out is exempt from federal hazardous waste laws. The absence of a federal regulatory baseline in these two critical areas leaves a lot of grey area.

And it gets greyer. The DEC, like other states, adopts a laissez-faire approach to much of its oversight.  Agency’s are understaffed and rely primarily on paperwork submitted by operators. Complaints involving water contamination are often settled privately between leaseholder and drillers, and they often end with non-disclosure agreements that eliminate any public paper trail.

William T. Boria, a water resources specialist at the Chautauqua County Health Department, was frustrated by this very approach.  He reported his agency had received more than 140 complaints related to water pollution or gas migration associated with nearby drilling operations. “Those complaints that were recorded are probably just a fraction of the actual problems that occurred,” he stated in a 2004 memo summarizing the issue. For fifty-three of those cases filed from 1983 to 2008, county health officials tabulated an informational spreadsheet that cited methane migration, brine pollution, and at least one home evacuation resulting from a water well explosion. “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 nonexistent,” 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.”

The problem is worse in Pennsylvania, where 200,000 or more abandoned wells are more or less hidden under the landscape. In September, 2009, the DEP compiled a draft of known cases where methane leaked from abandoned or working wells.  According to the briefing, 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.

What does this mean for the future? It’s hard to know where to start, but focusing on the cost of the problem is a good place. Plugging a single well can cost between $5,000 and $50,000, according to estimates from the DEC. That means the bill for dealing wells on New York’s priority list alone would cost between $24 million and $236 million. In economic terms, this cost is “externalized,” which means that it is not borne by businesses or their consumer. Rather, it’s falls to taxpayers, or comes at the expense of public health and safety.

In many ways the orphan well legacy is similar to the abandoned mine legacy that continues to foul water and create public hazards in Pennsylvania and other states, and it’s a manifestation of an important aspect of the extraction industry overall. Coal, natural gas, and oil provide modern-day comforts beyond historical comparison. As energy consumers, we should embrace a moral obligation to understand where our energy comes from and at what cost as we evaluate tradeoffs.

New study: EPA on target with estimates of methane leaks PNAS offers latest contribution to controversial field

(Updated Sept. 17 with statement from Cathles and link to Dot Earth post. Updated Sept. 18 with link and reference to Steve Horn’s report of industry connections to the study.)

The latest in a string of studies gauging the volume and impact of methane leaks from shale gas development supports the validity of current estimates by the federal government to direct policy.

The peer review study released Monday afternoon by the Proceedings of the National Academies of Science reports direct measurements of methane emissions at 190 onshore natural gas sites in the United States. The report found:

Total emissions estimated based on measurements in this work (2,300 Gg) are comparable with the most recent EPA national GHG inventory (2,545 Gg) in the 2011 inventory, released in April 2013.

The PNAS study represents a collaboration between the industry, the Environmental Defense Fund, and academic teams from the University of Texas, Arizona State, Temple, Berkley and other institutions. It found that lower-than-expected leaks at specific shale gas well sites were largely offset by greater-than-expected leaks elsewhere in the gas processing and transmission system:

The measurements indicate that well completion emissions are lower than previously estimated; the data also show emissions from pneumatic controllers and equipment leaks are higher than Environmental Protection Agency (EPA) national emission Q:8 projections. Estimates of total emissions are similar to the most recent EPA national inventory of methane emissions from natural gas production.

The report will surely stimulate controversy on the critical issue of whether natural gas is an effective means to transition away from energy sources that exacerbate climate change, and whether the federal government is armed with enough information to oversee the industry. Natural gas burns cleaner than coal, with less carbon and virtually no particulate matter and other toxic pollutants, such as mercury. But methane is a potent greenhouse gas, especially over the short term. (Oil and natural gas production also releases hazardous air pollutants  -- HAPs --  and volatile organic compounds -- VOCs -- which are not the focus of the study.)

To help inform policy, scientists are making new efforts to gauge how much unaccounted methane leaks into the air at wells, pipelines and processing stations, and what the impact is. According the PNAS study:

These measurements will help inform policymakers, researchers, and industry, providing information about some of the sources of methane emissions from the production of natural gas, and will better inform and advance national and international scientific and policy discussions with respect to natural gas development and use.

(Questions related to the industry’s impact on air are distinct from policy issues related to water pollution. The natural gas industry is exempt from federal laws that govern chemicals injected into the ground, and how the waste that flows back from wells is handled and disposed of.)

The PNAS study is one of several that have emerged in the last two years in the wake of a paper by Robert Howarth and Anthony Ingraffea that found natural gas is not as clean-burning as advertised. Howarth, a climate scientist at Cornell University, has been involved in the discussion of methane’s impact on air since it became a pressing national issue with the advent of the domestic shale gas boom enabled by horizontal drilling and high volume fracking. Howarth and his Cornell colleague Tony Ingraffea essentially kick-started the debate in 2010 when they published a controversial paper challenging conventional wisdom that natural gas production was less of a warming threat than coal.

The topic was again in the news earlier this year when a study by the National Oceanic and Atmospheric Administration in the Uinta Basin in Utah suggested that benefits of natural gas production were offset by excessive methane leaks in the system. Climate change reporter and author Andrew Revkin offers an excellent history of the discussion – along with comments and reaction from academic stakeholders on both sides of the debate -- in his recent post for New York Times Dot Earth.

Howarth characterized the findings in the PNAS paper as representing a “best case scenario” of methane leakage because the measurements were taken only at places where industry allowed access for researchers. By comparison, the Utah study was derived from observations and measurements collected by equipment on planes that flew over broad areas, rather than relying on access to individual sites granted by industry.

The PNAS paper “is not representative of what industry is actually doing, but what it wants to be,” Howarth said. Still, he added, the study is an important addition to the small but growing body of knowledge on the extent and impact of methane leaks.  “It’s a new science, and I’m impressed with what they have been able to do in this short time frame,” he said.

Lawrence Cathles, a colleague of Howarth at Cornell who argues the climate gains from natural gas development outweigh the losses, said it was not feasible that industry could hide or disguise the volume of methane emissions. “Actually, we will know immediately, and in plenty of time to do something about it, if industry is deceiving us,” he said in a statement that can be viewed here. “In order for methane to contribute to greenhouse warming it must increase dramatically in its atmospheric concentration, and this will be easy to notice.

As expected, industry's ties and involvement with the study were immediately challenged by critics upon its release. The Public Accountability Initiative, a watchdog group, issued this statement:

The failure to disclose the significant conflict of interest of one of the authors, Jennifer Miskimins, appears to constitute a violation of PNAS's conflict of interest policy. Miskimins is listed as a professor at Colorado School of Mines in the article, but has been an employee of Barree Consulting, an oil and gas consultancy offering fracking services, since 2012 -- prior to the submission of the study to PNAS. 

The disclosure failure may warrant an erratum or possible sanctions on the authors of the study, according to PNAS rules. PNAS's conflict of interest policy is here: http://www.pnas.org/site/authors/coi.xhtml

A day after this assessment, Steve Horn, writing for DeSmog Blog, reported that nine members of the 11-person steering committee overseeing the study have direct ties to industry interests. You can find the list and the rest of Horn's post here.

Cabot demolishes home central to Dimock water dispute Methane problems persist in 9-square mile no-drilling zone

The Sautner home became focus of the antifracking movement
PHOTO JAMES PITARRESI 

Cabot Oil & Gas executives may have ongoing problems with operations in Dimock Pennsylvania, but the status of water quality at 1101 Carter Road is no longer one of them.

After years of controversy, Cabot last year paid an undisclosed amount to owners of that property, Craig and Julie Sautner, to settle claims that drilling contaminated their water well. As part of the deal, Cabot acquired the 3.6-acre property, the status of which remained a matter of speculation until last week when flatbeds unloaded a demolition excavator and multiple dumpsters in the driveway of the vacant home.

The arrival of the demolition crew marked a concluding chapter of a conflict that began in September, 2008, when the Sautner’s water suddenly went bad after Cabot crews drilled a nearby gas well into the Marcellus Shale. Under oversight by the Pennsylvania Department of Environmental Protection, Cabot attempted to restore the Sautner’s water with a system of filters and tanks, which took up a substantial part of the basement. The system proved ineffective, and the company began delivering bottled water to the house.

Since then, the three bedroom ranch, sitting tidy and plumb under a canopy of maple trees off the bucolic dirt road, has become a symbol of the anti-fracking movement in the heart of Cabot’s most prolific well field.

EPA investigation begins at Sautner home in Jan. 2012
PHOTO JAMES PITARRESI 

As drilling intensified in the area, Cabot began dealing with similar water complaints at dozens of other homes in the Carter Road area. After investigating the complaints, the DEP held Cabot drilling operations into the Marcellus Shale responsible for methane contamination in 18 water wells, and eventually ordered the company to install an $11 million pipeline to deliver water to the homes. Cabot resisted, and the DEP’s order caused a political fracas that split the community. A group of residents, including those receiving royalty payments and other compensation from the company, sided with the industry and characterized those demanding the water line as malcontents. Plans for the water line were dropped after Tom Corbett, a gas drilling proponent, was elected governor in 2010. But the DEP continued to enforce a ban on drilling in a 9-square mile area around Carter Road where problems persisted.  The primary constituents affecting the wells – methane, arsenic, barium and other metals -- are naturally occurring, and also a product of drilling.

My coverage of this story for the Press & Sun-Bulletin, and later in writing Under the Surface and posts for this blog, brought me into the Saunter’s home on several occasions. The house, with three bathrooms and a finished basement, was fairly new and well kept. A barn-star adorned unblemished vinyl siding next to the garage entrance, and America the Beautiful was inscribed in a silvery stencil on the wall opposite the entrance in the main foyer. The interior decor reflected the Sautner’s fondness for wall art and country nick knacks, carefully arranged, along with framed photos of the Sautner’s teenage children – Cody and Kelly -- and their various pets, including Emmi, an overprotective Chihuahua that had to be contained when visitors arrived.

Cabot contractors demolish the former Sautner property
PHOTO TOM WILBER

The home drew national media attention in 2012, when the federal Environmental Protection Agency, assessing data compiled by Cabot and the DEP, determined that the aquifer feeding the Sautner’s well and other homes in the area showed hazardous levels of pollution. Richard Fetzer, the EPA’s site coordinator, summed it up this way in an internal memo on Jan. 19, 2012: “What is clear is that this data strongly suggests that hazardous substances have been released and are present in some home wells at levels that may present a public health concern.”

The federal agency began it’s own series of tests, and found arsenic, barium, manganese, chromium, and methane in five of 61 wells at levels “that could propose a health concern.” The agency determined no follow up was necessary, however, because residents of affected homes had been notified and polluted wells were taken off line or equipped with filters. The contamination -- in roughly 8 percent of the wells tested -- was from naturally occurring compounds that are also used in or associated with drilling operations, which can exacerbate existing problems or introduce new ones.

Frustrated that Cabot avoided accountability for the problem, the Sautners emerged as dedicated and nationally visible critics of the industry with a degree of animosity that grew with each passing year. They filled their yard and garden with anti-fracking posters, and jugs of brown water. They appeared on television and radio shows and were featured at anti-fracking rallies and concerts, typically carrying the water jugs that became something of a trademark of the movement. Notably, the Sautner’s story was featured in Gasland, the Emmy-award winning film by Josh Fox that premiered on HBO in 2010, and which was largely responsible for inspiring the anti-fracking movement.

The Sautner’s approach -- blunt, antagonistic, and sustained – was eventually met by counter attacks from Cabot and gas supporters, both locally and nationally, determined to discredit their claims. While Josh Fox portrayed the Sautners as victims-turned-activists in Gasland, filmmaker Phelim McAleer, from Ireland, depicted them in his film Frack Nation as self-serving and exploitive phonies. (My reviews of both films can be found here.)

A new message at 1101 Carter Road
PHOTO TOM WILBER

The story is complicated by water quality tests that show different things at different times to different parties, and a settlement with Cabot that forbids parties to talk about the case. We know that, while the Sautner home apparently passed spec when the EPA took samples in January, 2012, it had a documented history of pollution prior to that. We also know that the EPA confirmed water problems at five homes. And we know that, in addition to whatever other terms the Sautners settled with Cabot, they received  $167,500 for their property; and it struck me as newsworthy when I heard that contractors working for Cabot had arrived last week to demolish the home.

I placed a call to Cabot spokesman George Stark, who told me that the company had a potential buyer for the land and that it was more marketable without the house.  Stark said he did not know if the land would be developed, and could not offer other details.

An obvious line of thinking, reflected on anti-fracking list serves, is this: With no home, there is no well, and with no well, there is no liability related to water pollution, at least at 1101 Carter Road. But water pollution at other homes continues to plague the company. Regulators are now focusing on methane pollution in three water wells about a mile south of the Sautner home, where Carter Road tees into State Route 3023. The DEP has indentified Cabot’s Costello gas well at this location as the primary suspect.

Stark said that a service rig, which has been at the site for months, allows crews to “monitor” the casing of the gas well, which appears sound.

DEP officials explained it differently. They have not pinpointed a source, according to a recent report in the Scranton Times Tribune quoting DEP spokeswoman Colleen Connolly. But they have determined that the suspect gas well is "unviable" and will have to be plugged. In an email response to my query, Connolly reported that Cabot is ”continuing remedial efforts” at the Costello gas well and “evaluating the effectiveness” of the work.  Methane levels are fluctuating, she said. Additionally, tests have shown levels of iron and manganese that were elevated but within standards in some water samples. Elevated levels of these elements is “not uncommon during gas migration,” she reported.

New and substantial research shows that methane migration from shale gas development is not an isolated problem. A recent study published by the Proceedings of the National Academy of Sciences shows that methane concentrations to be, on average, six times higher for homes with water supplies a kilometer or less from Marcellus Shale gas wells. Ethane, another component of natural gas, averaged 23 times higher for homes within a kilometer from natural gas wells.

The Sautners were not on hand to see the demolition of their former home. After the settlement last year, they moved away – first to Ithaca New York, and later to Tennessee. The new owner, not surprisingly, had removed all the anti-fracking signs in the yard and replaced them with a single blue placard that read “Dimock Proud! Where the water IS clean and the people are friendly.”

The excavator raised its boom and swung it toward the side of the garage. It came to an abrupt stop just before impact. The operator then raised the talons of the bucket to the top of the garage, and guided them in a slow arch, peeling back a swath of roof. The machine began biting into the asphalt tiles, roof boards and rafters. Within an hour, the two-car garage was mostly gone, and the machine continued chewing apart the house and packing wads of siding, insulation, wiring and splintered timber into dumpsters. By the end of the next day, all traces of the house were gone, except the foundation, which was filled in shortly thereafter.

The Sautners are bound by the non-disclosure clause from discussing the Cabot settlement or the water issue. But Craig Sautner did offer this about the demolition: “Their (Cabot’s) actions speak louder than words. There is nothing that I can say that tells the story any better than what they did.”

Time will tell whether 1101 Carter Road remains an uninhabited part of Cabot’s oil patch. The company, meanwhile, is staking much of its future on the gas field in northern Pennsylvania. According to Richard Zeits, reporting for the financial website Seeking Alpha, Cabot officials anticipate at least 3,000 future drilling sites on several hundred thousand acres in Susquehanna County. Yet at the heart of this area, where it all began, the future of the nine-square mile no-drill zone remains awkwardly bound to its legacy of water issues.

Note: This video of the demolition was taken by Vera Scroggins, an anti-fracking activist who lives in Susquehanna County.

Home Rule adversaries welcome date with high court Ruling on towns’ role in fracking battle will be ‘definitive’

Jurisdictional rights of local governments – an issue known as Home Rule -- will have monumental influence on where and if shale gas wells will be drilled in New York. The outcome of that story now hinges on the final act of a conflict that began in 2011 after the towns of Dryden and Middlefield passed laws that prohibited gas drilling and the controversial practice of hydraulic fracturing, deemed incompatible with land use plans.

West

The decision last week by New York’s high court to hear a case challenging local bans on fracking is a clear and understandable victory for the industry.  It is also something of a plot twist after bans in both Middlefield and Dryden were unanimously upheld in separate trial courts, and then again in the state’s appellate division. Tom West, who represents industry, knew a chance to breathe new life into his case challenging the town bans in the state’s high court was, in his words, “a long shot.” In 2012, the Court of Appeals heard just 64 cases out of nearly 1,000 requests for permission to appeal, or 6.4 percent. But because of the importance of the case, he filed an appeal anyway. The court announced on August 29th that it would hear the case.

Slottje

With this in mind, you might expect that those who see Home Rule as a tool to discourage fracking in New York would be disappointed, maybe even crushed, by the possibility that clear-cut victories in lower courts could now be overturned in the Court of Appeals. But you would be wrong, at least if your source of information is Helen Slottje. Slottje is a principal attorney who represents the municipalities. It’s a role that positions her as an adversary to West in a case that brings a new level of visibility to both of their veteran careers. The Court of Appeals’ decision to hear the case gives the industry another chance. But, Slottje points out, it also gives Home Rule advocates a chance to remove any ambiguity that may have remained with lower court rulings. Without a definitive ruling from the high court, the door would remain open for other challenges and legal tacks in other districts.

“Lawyers might be interested in this dragging on. But it gets expensive and it’s a long process,” Slottje said. “There’s no quicker or easier way than having the course go to the Court of Appeals.”

On this point, West and Slottje have no differences.  “That’s a rare moment of agreement between us,” West said. “This will be definitive. However the Court of Appeals rules, that’s it. ”

Slottje and a colleague, attorney Deborah Goldberg of Earthjustice, have publically debated the case with West on various radio shows and at law clinics over the last year. I have participated in more than one of these events as a facilitator, and I’m now in the fortunate position of being invited to participate as a moderator in an upcoming clinic at the Albany Law School that will feature various legal points of reference on the future of drilling in New York State. The morning program promises a look at legal factors that will influence shale gas development, ranging from health impacts to property rights, with the afternoon session featuring the ground breaking Home Rule case as it advances to an even bigger stage. (I will moderate a panel in the morning program, and Capitol Pressroom host Susan Arbetter will moderate a debate between Goldberg and West in the afternoon session.)

The question at the core of the Home Rule case -- Norse Energy Corporation vs Town of Dryden et al. -- is whether the state’s Oil Gas and Solutions Mining law supersedes local laws when it comes to “regulation” of oil and gas operations. Lower courts have ruled in favor of the towns’ argument – based on precedent in similar cases involving jurisdiction over sand and gravel mines -- that banning something is different than regulating it. In other words, a local government can have a say of where and if gas wells are sited based on local land use plans, but not how they operate.

More than an abstract academic discussion, the outcome will influence the local landscapes for future generations. More than 150 municipalities have passed a ban or moratorium on gas drilling or fracking, according to FracTracker. It’s an area where the issues of fracking – with all its national and global ramifications – is brought tangibly down to the town board level. Whenever people – for or against fracking -- can see such a direct return on their civic engagement, it produces the kind of stories – stories with impact -- that journalistic sensibilities relish.

Both Slottje and West are cautious about reading much about the odds of winning or losing into the court’s decision to hear the case. There is no pattern in former rulings that suggests the Court of Appeals’ willingness to hear a given case predisposes it to overturning the decision of lower courts, with the record showing it upholds decisions with the approximate frequency that it overturns them.

“I think you can only read into this that it’s important for the court to clarify this,” West said.

The matter will be decided by the seven Court of Appeals judges, appointed by the governor to 14-year terms. (See their bios here.) The ruling is expected to come in the middle of next year, but the work has already begun. The schedule is yet to be announced, but if the case follows normal course of events, the petitioners, Norse Energy and Cooperstown Holstein Corp. (represented by West) have 10 days from the Aug. 29 announcement to file a preliminary statement of appeal, and 60 days after that to file briefs. Briefs from the towns of Dryden and Middlefield (represented by Slottje and Goldberg) are due 45 days after the industry’s briefs are filed. That means all the paperwork would have to be filed by the end of the year. Oral arguments would typically come five months later, or in May. Decisions are typically issued 40 days after oral arguments, which would be July.

The case could drag out longer, but that is unlikely, attorneys noted. The Court of Appeals, unlike other branches of government, has a reputation for sticking to schedules. There are other legal issues yet to be tested in courts, including the state’s (still undecided) administrative approach to regulate, permit, or ban shale gas wells while balancing public health and environmental concerns. By this time next year, however, the home rule case will be settled, even though fracking will undoubtedly remain a contentious political issue, with pending legislative and gubernatorial elections and an open door for legislative intervention

Finite fossils, energy poverty, and other benchmarks

I will be mostly off line through Labor Day as I attempt some vacation time in northern New York with family. Upon my return, I expect to follow-up with a post about the status of natural gas infrastructure in New York, and another about highly-anticipated health studies that are purportedly key to the outcome of the shale gas decision in New York.

Meantime, I offer some raw material for reflection through a very wide lens. First, a quote, cited in my last post by President Obama during his visit to Binghamton last week:

The bottom line is those (fossil fuels) are still finite resources.  Climate change is real.  The planet is getting warmer.  And you’ve got several billion Chinese, Indians, Africans and others who also want cars, refrigerators, electricity. And as they go through their development cycle, the planet cannot sustain the same kinds of energy use as we have right now.  So we’re going to have to make a shift.

Second, a short film from a fracking skeptic about renewable energy development in parts of the developed world and Germany in particular. It’s part of a series called Shale Gas Stories by Kirsi Jansa, an independent film-maker.



Third, a clip from a multi-media project depicting energy poverty – the term for the abject absence of fundamental resources, mostly in undeveloped countries -- by Peter DiCampo, another independent filmmaker. DiCampo’s work, title Life Witout Lights, makes tangible an idea that is mostly a distant abstraction for many of us who never have lived long without power at our fingertips.

I find each of these perspectives compelling and provocative in its own right. Collectively, they provide no outline or theme that suggests a broad and simple answer, but they give plenty to think about.

Obama’s upstate tour motivates anti-fracking activists President: ‘Fossil fuels finite. Climate change is real’

Anti-fracking protestors line the motorcade route at Binghamton University

It was tough going for the 400 protesters preparing for Obama’s visit to Binghamton University Friday. They faced traffic from a rush of returning students and a maze of construction barriers, detours, and police blockades. Parking on campus, limited under ideal circumstances, got predictably worse when police closed campus roads at 10 a.m., two and a half hours prior to the arrival of the presidential motorcade.

After getting an early morning start that began with a walk of a mile or more from remote parking spots, with NO FRACKING WAY placards and provisions in hand, the protesters – skewed heavily toward the baby boom generation but also including students -- gathered at a designated spot on the motorcade route in front of the university library. They rallied for hours while waiting for the president’s arrival.  They chanted “Yes We Can,” echoing both the president’s campaign slogan, and their intention to stop fracking. The cheers reverberated across quads and walkways at the center of campus that were mostly empty due to security measures, and the animation of the protesters offered stark contrast to the poised vigilance of police and secret service personnel stationed at every turn.

Behind the scene at the Town Hall meeting

I passed the protesters as I negotiated the series of barriers and yellow tape, hurrying to get to the press check-in at the university union before the cut-off. After getting cleared, I was directed through the press entrance to the venue, where I set up my laptop at a bank of workstations that accommodated about 40 other reporters on the periphery of the action. My view was partially obscured by the risers in front of me, which held cameras for photographers and broadcast outlets. The press pool, easily numbering more than 100, flanked one side of the small hall. The president’s podium was in the middle. Two other sets of risers – opposite and at a right angle to the risers for the press pool -- held students and faculty picked from a lottery. In the remaining space a row of folded chairs directly in front of the president was reserved for local officials and dignitaries.

A few hours later, with everybody in their assigned places, a helicopter churned overhead and the presidential motorcade turned onto campus. As the line of motorcycles with flashing lights, SUVs and a large black bus with the presidential seal made their way up the road, the activists by the library seized their brief moment and shouted and waved banners. Some glimpsed the president standing near the front of the bus, but it was difficult to discern a reaction behind the tinted class. It was over in an instant, and several minutes later, the president made his way into the Union from an unseen entrance.


Video of Obama's town hall meeting at Binghamton

Obama opened the meeting with a short talk about education as the essence of the American Dream. Predictably, he offered no passing mention of the subject that stirred the protest that greeted his arrival, or other protests that had been staged across various points of his two-day tour through upstate New York and Pennsylvania. The questions and answers of the two-hour town hall meeting were themed around equality and access and affordability of the American higher education system. (With due respect to the significance of the educational issues that were the focus of the president’s tour, I will not go into these much here, and leave that worthwhile work to other bloggers and educational beat writers.)

In keeping with the heart of the theme of his second term – working for the middle class -- Obama projected an approachable and informal manner throughout his upstate tour, which included spontaneous stops to greet surprised onlookers at soccer-fields, diners, and cafes. And he kept  up that manner at Binghamton University.  “I’m interested in hearing your stories, getting your questions,” he said. “And this will be a pretty informal affair -- well, as informal as it gets when the President comes -- (to laughter) -- and there are a bunch of cameras everywhere.” After calling on a student in an Obama T-shirt, he advised “here’s a general rule in the presidential town hall:  If you want to get called on, wear the president's face on your shirt.” (The student’s question: How does your administration plan to address the major budget cuts that are happening with Head Start schools around the U.S.? Obama’s answer: As the deficit continues to fall with the economic recovery, he sees more resources for federal funding. But it remains a political fight, and he will fight for worthwhile programs like Head Start.)

Near the end of the meeting, Obama called on a man with something other than education on his mind. His name was Adam Flint, coordinator of a Cooperative Extension program called Broome Energy Leadership Program. Flint began with a bit of context: Fossil fuels might last another generation. And then what? He was worried about his children’s futures, and he was guessing that the president, with adolescent daughters of his own, shared his concern. “Is there any good news for green economy of future?” Flint asked.

Behind that simple question lies a convoluted political dilemma, and the president’s answer reflected this, if little else. On the one hand, Obama said, with record production of domestic fossil fuel “we’ve actually achieved, or are on the verge of achieving about as close as you can get to energy independence as America is going to see.” He notably chose to avoid the word “fracking” – the controversial method of splitting rock with pressurized chemical solutions. This technology, exempt from federal regulations that govern chemicals that go into the ground and waste that comes out of the ground, is largely responsible for prolonging and enabling our fossil fuel-based energy system.

Without mentioning these exemptions, Obama pushed on to the crux of the question: The future. “The bottom line is those (fossil fuels) are still finite resources.  Climate change is real.  The planet is getting warmer.  And you’ve got several billion Chinese, Indians, Africans and others who also want cars, refrigerators, electricity. And as they go through their development cycle, the planet cannot sustain the same kinds of energy use as we have right now.  So we’re going to have to make a shift.”

The shift will require new technology, he said. But immediate improvements can come through conservation measures now within reach that could reduce the country’s energy consumption by 20 percent to 30 percent.  Retrofitting buildings for energy efficiency, as well as building new energy-efficient buildings and communities, can create jobs as well as decrease energy dependence. But even a relatively simple approach like this – what Obama called the “low hanging fruit” of the energy question – involves a problem. The problem is rooted deeply in prevailing influence of Big Energy on Capitol Hill, and ideological factors that “tend not to be particularly sympathetic to alternative energy strategies,” Obama said.

“In some cases, we’ve actually been criticized that it’s a socialist plot that’s restricting your freedom for us to encourage energy-efficient light bulbs, for example.  I never understood that.  But you hear those arguments.  I mean, you can go on the Web, and people will be decrying how simple stuff that we’re doing, like trying to set up regulations to make appliances more energy-efficient -- which saves consumers money and is good for our environment -- is somehow restricting America’s liberty and violates the Constitution.

“A lot of our job is to educate the public as to why this can be good for them -- in a very narrow self-interested way.  This is not pie in the sky. This is not tree-hugging, sprout-eating university professors. This is a practical, hardheaded, smart, business-savvy approach to how we deal with energy.”

Obama is dealing with energy in a somewhat different way than his fellow Democratic leader, New York Governor Andrew Cuomo. Obama has embraced an “all of the above” approach to encourage sources of domestic energy production, including fossil fuels and renewables, and in previous speeches he has identified fracking for natural gas and oil as “a priority.” Obama’s words have been supported by his actions: His EPA has dropped two critical investigations into groundwater pollution near drilling sites in Pavillion, Wyoming and Dimock, Pennsylvania. Both investigations found chemicals associated with drilling in residential water wells, and this finding, if pursued, could have provided ammunition for policy reform and a threat to the industry’s exemption to the Safe Drinking Water Act. Also, Obama’s Department of Energy has begun permitting facilities to export gas, a move that will encourage more exploration and production at home.

Cuomo, on the other hand, leads a state that sits over a lucrative part of the Marcellus and Utica shales – world class gas reserves. Yet Cuomo has not allowed shale gas development. A defacto-moratorium on permitting is now entering its sixth year, while the Cuomo administration continues to evaluate health and environmental impacts of fracking and the broader consequences of shale gas development.

In the meantime, political action groups both for and against fracking have used the delay to pressure Cuomo. Fracking supporters also appeared with signs  – Drill a Well, bring a soldier home -- within view of the presidential motorcade yesterday. That protest, at Otsiningo Park boarding Route 81 several miles north of Binghamton, was much smaller and less visible than the one on campus, and the difference between the two protests illustrates the way things are going in New York state.

Walter Hang, an anti-fracking activist and an organizer of the Binghamton University protest, said the logistically difficult demonstration on campus was a reflection of the organizational ability and commitment of the anti-fracking push from the grass roots that has stalled the development of shale gas at the Pennsylvania border.

“When Obama’s office announced he would be taking a bus tour through upstate, we knew this was a chance to get our message out nationally,” said Hang, a career activist who worked as a community organizer for New York Public Interest Research Group for decades. Hang emphasizes the importance of tactics and execution in political action campaigns. “We’re out-organizing the industry in New York state,” he said.

In addition to well-organized grass roots campaigns in upstate New York, the movement is also getting help from Cuomo’s broader progressive base, which includes a host of institutions and influence from the Hudson Valley and New York City areas strongly opposed to fracking.

Cuomo, seen by many as a rising star in the Democratic party and a possible successor to Obama, neatly sidestepped this chapter of the shale gas controversy. After greeting the president at the Buffalo airport Thursday, he took his daughters back to college while the president made his rounds upstate.

On a related note: While most drilling takes place on private land, the federal government is considering a set of rules to regulate fracking on federal and Indian lands. This recent article by Keith Johnson of the Wall Street Journal explains the fight between the industry and environmentalists over the scope of proposed rules by the Bureau of Land Management.