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.

Anti-frackers score victory on upstate NY home front... Town of Sanford board forced to repeal fracking gag law

Under legal pressure from anti-fracking groups, the Town of Sanford has repealed a law that prohibits people from publically discussing fracking at town meetings.

With the repeal, officials from The Natural Resources Defense Council announced this week they are dropping their case against the town.

In September, members of the Sanford Town Board passed a resolution banning the discussion of fracking during the public comment period at town meetings. The NRDC filed the lawsuit in February with the Catskill Citizens for Safe Energy in the U.S. Court of the Northern District of New York. The Town of Sanford resolution is unconstitutional, according to the complaint, because it bans speech at public meetings “about a matter of substantial public interest that has generated significant political activity.”

Several of the board members have direct financial stakes in the outcome of fracking and, be extension, policy being influenced in town halls on the controversial practice of extracting gas from bedrock using high volumes of undisclosed pressurized chemical solutions. Town Supervisor Dewey Decker is among those who signed a lease with XTO Energy to produce gas from the Marcellus Shale under his land. Decker leads a coalition of farmers who negotiated a deal with XTO Energy in 2008 to lease 50,000 acres for $110 million plus 13.5 percent royalties. Since then, development has been on hold pending a policy review on the impacts of shale gas development by state health and environmental officials

Sanford Town board meetings were becoming a draw for outspoken activists and residents opposed to fracking. Acting in the capacity of Town Supervisor, Decker sent a letter to Gov. Andrew Cuomo last fall urging the state to expedite the pending health and environmental policy review, and complaining that a delay was “only empowering opponents.” Prior to that, the board passed a resolution urging the state to move forward, and rejecting calls for the town to ban fracking.

Decker was out plowing his fields today and unavailable. He doesn’t carry a cell phone and he takes his lunch with him, his wife Dawn told me. I will update this post after I reach him.

“This is a vindication of the right to free speech,” NRDC attorney Kate Sinding said in a statement. “And it sends a message to communities everywhere. As Americans, we have the right to speak up when we feel threatened. And it is our government’s responsibility to listen.”

Status report: In my last post a stated my “next post” would be about injections wells in Ohio. To finish that, I’m waiting for some records from the Ohio Department of Natural Resources, which I expect by early next week.

Scale of shale “oil patch” beyond historical comparison

I drove across part of the oil patch this week. I left early Monday morning from Endicott, New York and headed west at a good clip on Intestate 86. By late afternoon, 390 miles down the road, I was in Oberlin Ohio.

Oil patch --- It’s a term of endearment in oil and gas circles that suggests the colloquial charm and Ol’ Boy character of the industry. Unthreatening, familiar, folksy, agricultural, and local … Like a pumpkin patch. It conjures a notion that – contrary to hype -- there’s nothing really new or fanciful about fracking.

Yet, nomenclature aside, there is nothing old-fashion about 21st century shale gas development. The scale of resource alone – take a drive across Devonian ”oil patch” sometime – is a primary distinction. So are the “unconventional” practices that make drawing gas from rock possible. High volume hydraulic fracturing and computer-modeled horizontal drilling have spurred an on-shore drilling boom as dissimilar to yesteryear’s oil patches as Big Ag and ethanol production is to Ma and Pa’s back 40.  Even so, regulatory controls on the industry remain stuck in the past – a time prior to regional planning and national hazardous waste disposal laws, when toxic loads were legally disposed of in the ground or injected into rivers.

I drove across portions of the Marcellus and Utica shales that collectively encompass the sub-surface of New York, Pennsylvania, Ohio, West Virginia and Maryland, including many regions that have never before been touched by the extraction industry. The sheer footprint of these resources and others like them throughout the country have increased the number of stakeholders with futures, for worse or better, tied to their development. (For an areal view of the oil patch, check out this video by Peter Saltonstall.)

What will this look like and what legacy will it leave for the next generation? Numbers, information and reports on the Internet have provided a convenient way to extract information on demand, often minus complexity, nuances and noises of real life.  But, as editors like to emphasize to reporters, nothing replaces being there. Writing Under the Surface has provided me with an unexpected windfall of information, perspective, and sources that comes with invitations from various stakeholders to speak on the subject. Inevitably this brings me to places where I would not have otherwise gone, and puts me in touch with stories I would not have otherwise seen. This past week I visited with activists at a potluck dinner at the basement of Peace Community Church in Oberlin, Ohio; spoke with a worker on the job at an injection well in central Ohio; and visited an area where wildcatters have begun exploring the Utica shale in western Pa. More on that in my next post.

Pa. eases water standard update after industry complaint Corbett’s DEP withdraws 4 pollutants from regulatory plan

In the face of industry opposition, Pennsylvania officials have backed away from proposed standards that would limit certain kinds pollution that drilling and fracking operators can discharge into the Commonwealth’s waters.

Specifically, the agency has removed proposed standards for molybdenum, sulfates, chlorides, and 1-4 dioxane, because the restrictions “raised the concern of the business community,” according to a recent DEP report.  The constituents were originally included in proposed updates to Chapter 93, which regulates water quality under the Clean Streams Law. The revised proposal is now pending approval by the Department of Environmental Protection’s Environmental Quality Board.

The most acutely toxic of the chemicals excluded from the proposed standards is 1-4 dioxane, a manufacturing solvent that can cause illnesses ranging from cancer to organ failure, and for which there is no current water quality standard in Pennsylvania.  Chlorides and sulfates, also eliminated from the revised regs, are less acutely toxic than dioxane but can cause ecological and health problems, especially when discharged in quantity over time in water bodies already stressed by high levels. Chlorides and sulfates are principal waste components of the shale gas and mining industries. They are measured as Total Dissolved Solids (TDS), or, more simply, things that dissolve in water. Water with high TDS, often deceptively clear, can wreak havoc on fresh water systems. Chlorides can also be a flag for other possible pollution that comes deep in the ground with flowback, including undisclosed mixtures of chemical solutions and naturally occurring metals and hydrocarbons that can foul fresh water.

Oil and gas drilling and fracking operators were joined by representatives from the electric generation, coal, steel, pharmaceuticals and metallurgy interests in opposing the original Chapter 93 updates drafted by regulatory officials using current information from the field and national guidelines. Trade associations maintained the proposed restrictions on chlorides and other chemicals “were not rooted in clear scientific evidence and failed to take the economic impact of the regulated community into account,” according to a DEP report.

Dunkard Creek fish kill

The proposal to develop standards for chlorides and the other constituents was due partly to problems that have cropped up since shale gas development took off in Pennsylvania five years ago. TDS levels spiked in the Monongahela and Allegheny river systems, when drilling waste was commonly disposed in treatment plants that were unequipped to handle it. In October, 2009, TDS levels in the Monongahela exceeded water quality standards at all of the 17 Potable Water Supply (PWS) intakes from the border with West Virginia to Pittsburgh, prompting an advisory to use bottled water that affected 325,000 people. That same year, Dunkard Creek, one of the most prolific freshwater sport fisheries in the region and a tributary to the Mon, was wiped out by TDS pollution. The 43 mile creek along Pennsylvania’s rural border with West Virginia was teeming with more than 161 aquatic species ranging from freshwater mussels to 3-foot muskellunge. By September, 2009, almost everything in Dunkard Creek was dead, with the exception of an invasive microscopic alga—common in Texas estuaries—that had somehow migrated into the creek and thrived in its suddenly brackish water. The disaster was attributed to multiple factors, including discharges from mining operations, water draw downs by the drilling industry which needed large quantities of fresh water to support fracking operations, illegal dumping, and the introduction of invasive algae.

The story of Dunkard Creek and the Mon (chronicled in Under the Surface) represents a broader concern about the health of Pennsylvania waterways that lead to revisions in the Pa. Clean Streams law under governor Ed Rendell and his DEP secretary John Hanger in 2010. The Chapter 95 revision (not to be confused with the Chapter 93 revisions now on the table) restricts new treatment plants from accepting high TDS waste from drill operators, although it allows the practice to continue at old plants. Environmental watchdog groups are concerned about  plants that continue to discharge high levels of chlorides into the watershed, including Waste Treatment Corp., in Warren County, Hart Resources Technologies, in Indiana County, and two plants run by Pa. Brine, one in Venango County and one in Indiana County. The plants are discharging effluent with chloride concentrations more than two times greater than seawater, according to Myron Arnowitt, Pennsylvania state director with Clean Water Action.

A team of academicians with Resources for the Future lead by Sheila M. Olmstead examined the chloride issue in Pennsylvania waterways, with results published in the Proceedings of the National Academy of Sciences early this year.  The team found (among other things) that chloride levels tended to be high downstream from treatment plants, and “surface water disposal of treated waste from shale gas wells represents a potentially important water quality burden.” In addition to chloride, “many other wastewater constituents could potentially reach surface water, although available data on their concentrations is limited.” (Michael Levi, who writes for the Council on Foreign Relation's Energy Security and Climate blog, takes a broader look at the study here.)

Michael Krancer

The Chapter 93 revisions now under consideration would have provided much broader limits on untreated disposal of chlorides. The removal of the proposed standards for chloride and other pollution is consistent with the platform of Governor Tom Corbett, Rendell’s successor, who campaigned openly to oppose impediments to the industry’s expansion in Pennsylvania. The decision to ease the Chapter 93 rules came under Corbett’s DEP chief, Michael Krancer, a former and future industry attorney. This month, Krancer left the DEP to rejoin Blank Rome, effective April 15, where he will chair the energy, petrochemical, and natural resources practice. The firm describes itself as “uniquely positioned to counsel and represent shale oil and gas exploration, production, and mid-stream companies regarding all of their business needs.” During his time as DEP secretary, Krancer did little to dispel the notion held by his critics that he was too accommodating to drilling interests.

The proposal to include and then withdraw the four pollutants are part of a larger package of water standards under consideration with Chapter 93, which is periodically updated to reflect technological and cultural changes along with evolving risks to water sheds.

Arnowitt said he believes there is a chance that the federal EPA may encourage DEP to include the standards for the pollutants in its final rule. “We suspect that the DEP and the EPA are having conversations about what the finished version is going to look like,” he said. “It’s possible the DEP will change course (due to) the fact that they have not officially put it forward.”

Actions, not words provide insight into NY’s fracking future 3 signs the state will not permit shale gas anytime soon

Early last summer, Governor Andrew Cuomo proposed to allow fracking on a test basis in certain areas along the state’s border with Pennsylvania over a prime area of the Marcellus Shale.  A month later, Cuomo suggested that the state’s policy review on the issue would be completed by Labor Day, or shortly after.

We have since learned that information from Cuomo and his staff about fracking has been consistent only in that it has been reliably contradictory, vague, and carefully crafted to appear neutral amid a firestorm of controversy and partisanship that have come to define New York’s fracking dilemma.   

Recent examples:

On Feb. 4, Department of Environmental Conservation Commissioner Joe Martens entered a legislative hearing room in the capitol where protesters outnumbered lawmakers and staff by more than three to one. Pressed by lawmakers, Martens testified that the final piece of the state’s policy review for gas permitting would be released by the Department of Health within “a few weeks.” That piece consists of a DOH review of whether the DEC’s plan to oversee the industry– outlined in a document called the Supplemental Generic Environmental Impact Statement (SGEIS) -- would sufficiently protect public health. Oddly, the administration has not released any scoping document, time frame, or explanation of the DOH review, and Martens told lawmakers DOH Commissioner Nirav Shah had not shared any specifics about its status with the DEC.

On Feb. 12, the DEC released a two-page memo from DOH Commissioner Shah to Martens explaining that the DOH review and recommendations would be completed “within a few weeks.”  Shah advised that, 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 near shale gas development in Pennsylvania, including one by Geisinger Health Systems that will evaluate hundreds of thousands of records of patients living in shale gas regions. None of the studies will be completed this year, and Shah did not explain how DOH staff might be able to glean useful information from them in a few weeks. The tone of his letter suggested an indefinite 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.

Since the release of the memo, Martens, Shah, and Cuomo have downplayed the notion that the review could hinder permitting for very long. The day after the memo was released, Martens said the state could still move forward with permitting shale wells, even though it missed a key deadline to adopt regulations. At a March 11 cabinet meeting, Shah said that the final DOH analysis would be done “in the next few weeks,” and in the next sentence declared the administration has “no time table” to complete it’s work, and that the science under evaluation “was a moving target.” At the same meeting, in response to a query from Gannett’s Albany correspondent Jon Campbell, Cuomo characterized the follow-up work by the DOH as possibly irrelevant. “We never said you had to wait for one of those studies or all three of those studies to finish,” he explained. “Just that they would be looked at during the pendency of the Department of Health Review.”

Campbell followed up with this logical question: If you don’t have results from those studies, what value are they to the Department of Health’s review?

Cuomo shrugged. “I don’t know,” he said. “Call them up. Look at them. Talk to them and find out. Maybe they are totally useless. In which case they’re useless. Maybe they have some information that is instructive to you. In which case you use the information.”

I took the governor’s suggestion. I learned that the DOH staff completed its meeting with administrators of the studies weeks ago, but I could find out nothing regarding what exactly health officials were looking at or how it would be factored into the SGEIS. Amanda O'Rourke, a spokeswoman for Geisinger, confirmed that DOH officials met with members of the Geisinger research team in late February, but added “we are not granting interviews on this topic at this time.” Asked why, she replied:  “I simply prefer not to discuss the meeting.”

This tells us only that the Cuomo administration, at the expense of transparency, has designed it’s fracking modus operandi to neutralize offensives from lobbyists and grass roots activists that inevitably accompany every small sign and huge expectation that the administration is leaning one way or the other. Rather than hanging on words, those trying to predict when and if shale gas wells will be sunk in New York are better off looking at more tangible signs within the administration, including these:

1) No budget for regulatory staff. DEC administrators have said the agency will need at least 140 new staff members to regulate the shale gas industry in New York. The governor’s budget, now under negotiation with legislators, contains no money to add staff for shale gas permitting or inspection. Moreover, an advisory panel of lawmakers and representatives from the industry and environmental groups tasked with looking at revenue sources for this function has not met in the past two years, and there are no signs of it being reconvened.

2) Recent departures suggest a critical disconnect. Two administrators key to drilling policy have inexplicably resigned in recent weeks. The most high profile departure was that of Robert Hallman, Cuomo’s deputy secretary for energy and environment who is on record as advocating shale gas development as an important bridge to cleaner energy fuel sources. Perhaps more relevant, however, is the resignation of Deputy Commissioner and General Counsel Steve Russo, who was instrumental in overseeing the development of the SGEIS under Cuomo. Given that both pro and anti-fracking groups have threatened to challenge the legal soundness of the state’s policy, it seems unlikely that Cuomo would proceed without a successor to Russo who is up to speed on the legal complexity of issues that have been evolving since 2008.

3) Everything remains on hold, as deadlines pass. The most current reason for the delay – that the DOH staff is looking at other studies – is ill defined and, as Cuomo suggested, possibly irrelevant. Further, the “few weeks” timetable for that work has long passed. I have heard from multiple sources that the work is in fact done, and there are larger forces at work.  As much as those close to the fracking debate would like to see the decision made in a political vacuum, it seldom if ever works that way. The fracking decision, which is also pending legislation, is one of many chips on the big table on which things get done in Albany. Gun Control (recently passed but still relevant), Minimum Wage, Casino designations, Stop and Frisk, and myriad budget issues.

For worse or better, Cuomo has decided that fracking, for now, is one of those issues that remains on the table. The glut of gas coming on the market in Pennsylvania has made this the path of least resistance for him, as it has substantially eased the demand for New York’s share of the resource while lowering prices. Tension between both camps of the fracking debate – and poles suggesting a split in the broader public (recently nudging slightly toward anti-frackers) – suggest the status quo is less damaging to Cuomo than the sequence of events that would come with a clear commitment for or against fracking. 

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.

New York’s fracking clock reset for end of February

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

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

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

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

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

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

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