Leaked record, DEC response show NY fracking quandary Questions persist over scope and relevance of health study

Several media outlets were able to make some hay recently with a leaked document suggesting that New York state regulators were ready to embrace shale gas development without further assessing its impact on public health.

Danny Hakim of the New York Times, Jon Campbell of Gannett and Karen Dewitt of WXXI were among Albany bureau reporters who got a hold of the document written by health and environmental officials in early 2012 as part of a broader policy package. The eight-page draft includes justifications for allowing high volume hydraulic fracturing to stimulate production of shale gas wells in New York without a comprehensive evaluation of health consequences. Specifically, it dismisses the type of analysis that activists are demanding – an exhaustive statistical breakdown, called a Health Impact Assessment, to quantify risks from various exposure scenarios. The DEC is against that kind of review, according to the leaked document, because it would “involve making a large number of assumptions about the many scenario-specific variables that influence the nature and degree of potential human exposure and toxicity.” Rather, the report concludes, with proper oversight “the Department expects that human chemical exposures during normal HVHF [High Volume Hydraulic Fracturing] operations will be prevented or reduced below levels of significant health concern.”

In short, the leaked document shows that the DEC was pursuing the exact approach that activist feared. “The position that the impacts of fracking can be regulated to ‘below levels of significant health concern’ is pure fantasy, and it is understandable why (Gov. Andrew Cuomo) did not press forward with these baseless conclusions last year,” Roger Downs, conservation director of the Sierra Club Atlantic Chapter told Campbell.

Emily DeSantis, a spokeswoman for the DEC, said the document that made news this week was outdated and no longer relevant in light of new developments. Specifically, the agency has since commissioned three independent health experts to assess whether the DEC’s work sufficiently addresses health concerns. More on that in a moment.

The leaked document is especially important in the context of controversy over whether the state has done enough homework to fully understand health risks associated with the controversial process, informally known as fracking, that injects high volumes of chemical solution into well bores to break bedrock and release gas. Fracking’s impact on public health is one of many issues the DEC has addressed in a 4,000-page draft document called the Supplemental Generic Environmental Impact Statement (SGEIS). It has been a work in progress since 2008. Critics have submitted more than 80,000 comments suggesting improvements. Some question whether state officials are fully accounting for health risks, ranging from exposure pathways from air and water pollution to community stresses related to boom/bust cycles of mineral extraction.

At the urging of environmental agencies late last year, the DEC commissioned three experts to assess whether the SGEIS adequately covers health issues. The panel was not asked to design an original study, but to critique the agency’s existing work. The experts have since submitted their opinions to the Department of Health, I have been told by sources, and staffers are now incorporating them into the SGEIS.

The document leaked to reporters Tuesday was written by unidentified staffers. It was to be added to the SGEIS in response to comments calling for a more thorough health analysis. Some will likely interpret the document’s defensive tone as yet more evidence that the outcome of the shale gas policy is preordained – and the health review will provide no more than a last-minute rubber stamp. It smacks of the message delivered through staff at the Division of Mineral Resources since the beginning of the shale gas boom in 2008. Bradley Field, head of that division, has long maintained that natural gas extraction is problem free; the DEC has never had any problems with conventional gas development; and unconventional development is not significantly different from a regulatory or safety standpoint -- claims that his critics find absurd.

But Field will not be making the final call on whether and when New York state permits drilling into the Utica and Marcellus shales – two of the largest reserves in the world. Governor Andrew Cuomo will.

The leaked document – and the DEC’s assertion that it is no longer relevant - represents a broader pattern over the last five years. Despite a continued push from the Mineral Resources Division, the governor and various advisors are ambivalent about committing upstate New York to large-scale mineral extraction and its potential to fundamentally change the character of many communities. Facing pressure from an influential anti-fracking campaign, including grass roots and institutional efforts, and as the prices of natural gas remains low, they are delaying that decision for as long as possible.

Cuomo has already limited some of his options. Through rhetoric and action, he is discouraging coal burning power plants and saying no to nuclear power. Can he also say no to shale gas and keep his political credibility in the absence of what would have to be unprecedented and revolutionary development of renewable fuel sources to fill the gap? At 55, Cuomo has a long political future, including a possible shot at the White House. Will the fracking decision become a political weight or buoy in his aspirations to become a national standard bearer for his party? For what it’s worth, and perhaps it’s not much, Cuomo’s policy seems out of step with Barack Obama’s “all-of-the-above” approach to developing domestic energy.

Since Cuomo took office two years ago, the messages over fracking have been mixed, and the confusion over the leaked document is only the most recent example. Early last summer – shortly after the document was written -- Cuomo proposed that the best approach to New York’s dilemma was to split the baby. Shale gas permits would be initially granted in places that want it, and withheld in places that do not. Additionally, the state would ban fracking altogether in certain watersheds, including those that supply New York City and Syracuse. It was a politically expedient answer, with messy and legally cumbersome technicalities. If this is the path forward, the state will have to figure out how it can legally prohibit the rights of some landowners to develop their mineral sources but not others, or how it can grant permits to proceed with an industrial process in one watershed that is deemed unsafe in another. Before it gets even that far, it will have to figure out a fair and accurate way to determine what areas want it and what areas do not. Will that require referendums? Local resolutions?

If shale gas development is left to natural selection of town government, what happens when push comes to shove in places over a particularly key section of the resource or strategic infrastructure rights of way where lack of access in one part hinders the development of other parts? These are questions that will apply not just in the near term, when the stakes are relatively low along with the price of gas. Policy must be strong enough to withstand a time of reckoning when the value of the resource doubles or triples, which is feasible given the historical fluctuation of gas prices and plans to increase markets with exports.

There is something else that has become an important aspect of New York’s policy story: Transparency. The fact that the leaked report was news at all is a consequence of the administration’s reluctance to respond to questions and certain freedom of information requests, leaving reporters digging extra hard to satisfy a public that is starving for information. Neither Cuomo nor his staff have responded to questions or offered records that would outline the scope of work assigned to the three health reviewers, for example.

Disembodied informational tidbits tend to raise more questions then they answer, and become news even without context needed to assess their relevance. Perhaps the DEC document leaked this week is outdated and irrelevant, as DeSantis says. If that is the case, it suggests the agency has taken an abrupt turn in a few short months. If it’s not the case, then the response is thin political cover from fallout from the legislative and judicial battle that will surely ensue once the SGEIS is released.

New York fracking trial balloon quickly loosing air... Criticism of Cuomo plan comes from both sides

A plan anonymously floated by the Cuomo administration last week to allow shale gas development in economically distressed areas of New York state while banning it in others is facing deflating criticism from both drilling proponents and critics.

The plan, reported Danny Hakim if by New York Times on Wedneday, echoed a proposal outlined by the National Resource Defense Council earlier this year. Specifically, the NRDC advised the state Department of Environmental Conservation to consider initially issuing permits for fracking within designated communities as part of a three-year pilot project. Permitting could then proceed elsewhere when fracking was deemed safe.

Leaders of groups on opposite sides of the debate, ranging from New Yorkers Against Fracking to the American Petroleum Institute, this week characterized the plan as unfair, unworkable, and legally unsound. Karen Bulich Moreau, executive director of the New York State Petroleum Council (a division of the APL) said limiting shale gas development to certain zones was bad for landowners, the state, and the industry. If science proves fracking safe, then permits should be granted on a first-come, first serve basis without geographic restrictions, she said. “The governor has said ‘science will determine this,’ and I think that is the expectation on both sides of the issue.”

Anti-fracking activists held a similar dislike for the plan, derived from a diametrically opposing view. Sandra Steingraber, a founder of New Yorkers Against Fracking, said the plan would make impoverished communities desperate for economic development guinea pigs for shale gas development. “In our state, people faced with economic inequity would include those living in communities in the Southern Tier, which are not only disproportionately impoverished but also disproportionately exposed to environmental pollutants left behind from previous industries.” She cited Monarch Chemical, IBM, and Endicott Johnson tanneries

Representatives from each side said their positions were grounded in justice. For industry supporters, justice means that landowners and residents have a right to pursue the economic fruits of the industry without suspect geographical boundaries. For anti-frackers, justice means that a practice deemed too risky for one community should be banned in all communities.

The fracking controversy has been raging for four years in New York state while the DEC has attempted to update its policy for permitting shale gas wells through a review called the Supplemental Environmental Impact Statement. The latest chapter of the controversy began on Wednesday, when Hakim sourced “a senior official at the State Department of Environmental Conservation and others with knowledge of the administration’s strategy” with a report that the state would at first limit fracking to “portions of several struggling New York counties along the border with Pennsylvania, and to permit it only in communities that express support for the technology.” The plan was similar to a recommendation by the NRDC suggesting a three-year pilot project in a limited area of the state to prove fracking safe. Since then, officials have spent the last several days distancing themselves from the plan. State officials, and Cuomo himself, have denied that any such plan existed. Officials at the NRDC, meanwhile, said they continue to stand against fracking anywhere until it is proven safe.

The reaction has been especially strong from New Yorkers Against Fracking, a coalition of grass roots groups lead by Sandra Steingraber, an ecologist and author who has written about the impact of pollution on children. NYAF is planning rallies in Binghamton and Albany on Tuesday and Wednesday aimed at the governor and the NRDC. Kate Sinding, an attorney representing the NRDC, last week apologized for the agency’s comments that “have created concern and confusion.” She added that the agency is calling for a “continued moratorium on new fracking until the environmental and health risks are fully and properly considered.”

But skeptical activists are demanding that the NRDC formalize this position, signaling a potential falling out between the $100 million mainstream environmental institution and many of its grass roots supporters. Walter Hang, an activist helping to organize the rallies in Binghamton and Albany, demanded that NRDC officials sign a letter requesting Cuomo “withhold drilling permits for any demonstration project in New York, and require full compliance with Executive Order No. 41” (by Gov. David Paterson to protect the public from the ill effects of shale gas development). “It is extremely important that we do not provide credibility to groups that might support the Governor's unconscionable, wretchedly bad proposal when all is said and done,“ Hang added.

Central to the fracking debate in New York is “home rule” – an ideal that would enable local municipalities to determine the future of shale gas development within their borders. The Cuomo plan reported by Hakim would honor the wishes of communities that wanted shale gas, as expressed through various town board resolutions, while keeping it at bay in communities that passed zoning laws to ban it.

Leaving the decision up to local governments is not a good option for the industry, Moreau noted. For a gas play the size of the Marcellus to be effectively developed over the course of decades, the industry needs a predictable and uniform regulatory environment from one town to the next to ensure access to large, contiguous tracks to build out extensive shale gas infrastructure over time.