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 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.

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.”