Coming soon: Audit to grade DEP’s oversight of drillers Water testing protocol remains center of transparency flap

Is the Pennsylvania Department of Environmental Protection a lion or a lamb when it comes to regulating and policing shale gas operations?

One qualified and independent source will soon provide an answer. Im May, the office of Auditor General Eugene DePasquale is due to release a detailed investigation into the practice and protocol of the state's regulation of the drilling industry, a source from his office told me this week.

DePasquale announced the review in January, 2013, in the wake of a controversy over whether state investigators obscure or alter the outcome of investigations into drilling’s impact on water supplies by disclosing an incomplete suite of chemical tests. The intention of the probe, according to a letter from DePasquale, is to determine the "adequacy and effectiveness of DEP's monitoring of water quality as potentially impacted by shale gas development activities, including but not limited to systems and procedures for testing, screening, reporting and response to adverse impact such as contamination."

In other words, the probe will get to a question at the crux of the fracking debate: whether and to what degree the DEP is safeguarding water supplies from drilling.

The DEP’s testing protocol for wells potentially affected by drilling operations entered the public spotlight with a case by Loren Kiskadden seeking damages for pollution against the agency and Range Resources. The case, now pending in the Court of Common Pleas, claims that the department withheld full results of tests of Kiskadden’s water in June 2011 and January 2012. The ensuing “suite code” controversy came to light in September 2012 with the deposition of Taru Upadhyay, the DEP Bureau of Laboratories technical director, at a Environmental Board Hearing. Upadhyay testified that results for some metals, including copper, nickel, zinc and titanium, were not included in Kiskadden’s final report. This was not unusual, she said, because the lab only verifies concentrations of compounds ordered by the investigator from the oil and gas division, even if the samples were tested for a broader range.

DEP officials have since confirmed that the testing protocol for markers of contamination from Marcellus Shale production – including what and how many chemicals  are included in the final analysis -- falls to the discretion of individual investigators because they are best able to judge what chemicals are relevant to the investigation.

Watchdog agencies have characterized the DEP’s approach as random, incomplete, and a violation of public trust. Steve Hvozdovich, Marcellus Shale Policy Associate for Clean Water Action, said residents and watchdog agencies took it on faith that the department was following accepted protocol outlined by the federal Environmental Protection Agency in Method 200.7 – which requires testing for at least 24 different chemicals.

“This comes down to a lack of trust and a lack of transparency,” he said. “Nobody outside of the DEP offices knew this – that they were not quality controlling and quality assuring for the full 24 chemicals. It took a law-suit to bring that out … We need to have comprehensive testing, especially in a case where it originates from a residential complaint.”

Clean Water Action was one of a dozen agencies that signed a letter to the DEP on January 25, 2013 with concerns that the agency's testing methods “lack transparency; result in the withholding of vital data from affected households and the public; force residents to potentially undergo prolonged exposure to contaminants that impact health; and delay action necessary to correct pollution of drinking water supplies.”

But concerns of environmental activists are not shared by all. The DEP’s approach to regulation and enforcement under drilling supporter Governor Tom Corbett has a lot to do with the boss’s political values of how much government should be overseeing private business. The oil and gas industry – provider of cheap abundant energy that we all demand – has been the long-time beneficiary of regulatory passes. For starters, the entire problem of determining what, how, and if chemicals affect water is prodigiously complicated by the fact that the industry is exempt from federal laws that require disclosure and regulations of chemicals injected into the ground, and also laws governing hazardous waste coming out. Corbett, who won election in 2010 partially on a platform to limit state regulations on the industry, has been praised by industry supporters who defend the DEP oversight as sufficient and responsible.

No matter what it says, DePasquale’s report, coming in May, will likely be controversial due to the political volatility of the subject matter. In addition to the water-testing issue, the probe will “determine the adequacy and effectiveness of DEP’s monitoring of the handling, treatment and disposal of waste connected with shale gas development activity, including but not limited to systems and procedures for testing, tracking, treating, disposal, data collection and analysis, reuse and recycling, reporting, and response to adverse impact such as contamination.”

It’s sure to add a new wrinkle to the shale gas debate as the election year heats up, beginning with primaries among gubernatorial candidates who will likely have something to say about it. Those include John Hanger, a Democrat, who served as DEP Secretary under the Ed Rendell administration. Hanger is a gas supporter, but he is also in the pro-regulatory camp. As DEP chief he has been critical of – and sometimes at odds with -- certain companies he characterized as rogues. He has called on the DEP to reform its protocol to ensure a comprehensive data set of water test results gets to people who are potentially affected by drilling. The degree Hanger's message resonates with primary voters will be one of many tests of how much weight regulatory reform carries in the larger political equation.

NY nat' gas projection exemplifies doublespeak on fracking Cuomo plan bases outlook on conflicting scenarios

Will Fracking be part of New York’s energy picture for the next 20 years, or not? The state’s draft 2014 Energy Plan is supposed to answer this kind of question, and the fact that it appears to but doesn’t represents the politically unwieldy position Governor Andrew Cuomo finds himself in with the fracking debate.

In a recent post, I wrote that the plan “makes no mention of developing New York’s shale reserves through fracking, a discussion that remains the elephant in the room. But the plan gives a nod to the role of natural gas and more infrastructure as part and parcel to some very ambitious, of very broad, goals.”

An astute reader, Keith Schue, flagged this. He pointed out Cuomo's plan does in fact mention fracking, albeit in a convoluted and (in my view) meaningless way. Schue directed me to “Volume 2 – Sources,” and a subsection on p. 88 titled "New York Production Forecast." (Embedded below)

My own review of this section found several things worth noting.  First, the forecast, accompanied by a chart, extends through 2035. During that time, the state’s natural gas production is “expected to decrease significantly,” according to the text, due to a “decline in existing formations” and “lack of new wells being drilled.”

Yet, oddly, the line plotted in the accompanying “figure 32” gas production climbs impressively through that period.

The text attempts to explain this, ignoring the inconsistency in the original analysis that gas production was expected to decline. The graph illustrates “a conservative Marcellus Shale natural gas production level.” This “conservative” level accounts for “potential (my emphasis) permitting and production difficulties related to horizontal drilling and hydraulic fracturing.” It offers this elaboration. “If these difficulties are minimized, Marcellus production levels could potentially be higher.”

Finally, it explains that the graph “would show a forecasted overall decline in production continuing through 2035 if the current prohibition on shale development continues.” It concludes that “Regardless of actions within New York boundaries,” ample supplies of gas exist elsewhere “as long as the interstate pipeline capacity exists.”

In a nut, the plan says that Marcellus gas will make production go up, contingent on unknowable factors if it happens, and go down if it doesn’t; and New York can get gas elsewhere anyway, if their are enough pipelines.

To my eye, the analysis appears at first blush to be vague to the point of meaninglessness. But I will grant that it provides a baseline for discussion and many will find that the very dance around the Marcellus question along with the excruciating qualifications and parsing of language are emblematic of the ambiguous state of our energy future.

Shue, who is working with various environmental and anti-frcking groups, explained in an email that he and others were in the process of “writing an exhaustive critique of the energy plan and will be shining a spotlight on this sly mention of fracking at the hearings too.” I am happy that others are looking carefully at this, and I welcome their assessments.

2014 Draft Nysep Vol2 Sources (Page88) 1

Moratorium or not, NY begins to feel fracking’s impact Outcome rests with future of consumption, production

While New York’s governor Andrew Cuomo has officially tabled a decision over the politically explosive issue of fracking until sometime after elections, his state’s energy dilemma continues to simmer.

For worse or better, the Empire State will continue to feel impacts of the fracking boom for the next decade or more. The question is how big those impacts will be. The answer, to a large degree, rests with the governor, who can direct policy encouraging or discouraging both production and consumption of natural gas, and/or alternatives.

Even with no decision to allow shale gas wells to be permitted within the state, fracked natural gas and oil are flowing into or passing through New York at an accelerated rate as the on-shore drilling boom continues to ramp up nationwide. Crude oil from the Bakken shale in North Dakota has begun passing through New York at an annual rate of 2 billion gallons, traveling by rail to Albany and then down the Hudson River on tankers and on to refineries in New Brunswick Canada. (The oil carries unusual risks. With relatively high concentrations of gas, it has caused explosions after four separate rail mishaps in North America, including one that killed 47 people in Lac Megantic, Canada.)

Numerous infrastructure plans to store and transport natural gas within New York are also well underway. Liberty Natural Gas has proposed a terminal to import gas to communities in New York and New Jersey. The Port Ambrose facility, proposed 19 miles off Long Island, would take in liquefied natural gas (LNG) from ships, convert it back into gas, and pipe it to markets in New York and New Jersey now dependent on heating oil. Anti-fracking activists fear the port will be converted to an export facility. In addition to various pipelines on the drawing board and underway throughout upstate and downstate, there are plans to increase storage capacity. In the Finger Lakes community of Seneca Lake, Inergy Midstream is seeking final approval from the Department of Environmental Conservation to store propane in depleted salt mines, which would serve as a distribution hub through the region. The project faces intense opposition from grass roots and institutional environmental causes.

Over the long haul, the impact of regional and national shale gas development on New York rests with two primary factors: How much gas the state consumes, and how much it produces.

On the consumption side, natural gas is a primary fuel for heating and electricity generation. Based on a draft of the New York State 2014 Energy Plan, recently released by the governor’s office, that trend is destine to continue, like it or not. The plan calls for expansion of natural gas infrastructure to replace heating oil – which is both dirty and expensive -- in urban areas downstate and elsewhere.  Initiative 9 on p. 44 states it this way:

Reduce reliance on petroleum products for heating buildings by supporting the use of clean alternatives to heating oil and expanding access to natural gas in the near term while pursuing strategies to reduce natural gas leakage.

Simply put, natural gas consumption will continue to be a staple in the state’s energy diet with intended improvements to its leaky delivery system.

The plan talks much about consumption and infrastructure of natural gas, but little about production. It makes no mention of developing New York’s shale reserves through fracking, a discussion that remains the elephant in the room. But the plan gives a nod to the role of natural gas and more infrastructure as part and parcel to some very ambitious, if very broad, goals. An overriding goal (rooted in policy from Gov. David Paterson's administration) is to reduce the amount of greenhouse gasses emitted in the state by 80 percent by 2050. It’s important to note that the gauge for measuring this goal is predicated on carbon; and that fuel oil – like coal -- emits much more carbon than gas. Critics like Bob Howarth feel the plan falls well short of fully accounting for the impact of methane. Howarth, a Cornell University ecology professor, is one of several co-authors of a paper challenging the notion that methane is an environmentally sound alternative to coal or other fossil fuels for that matter. “Natural gas is a disastrous fuel,” he said.

There are other aspects to the 2014 Energy Plan, including a $1 billion “New York Green Bank” to invest in “clean energy projects”; an initiative that lists “increased transportation alternatives”; and independent “microgrids” that can offer alternative and backup sources to communities apart from primary  grids.

The plan is easy to look at, with an abundance of glossy and marginally relevant pictures of happy people in scenic landscapes, but difficult to read with bureaucratic jargon that is simultaneously dense and vague. Some critics called out the report for a lack of specifics and the preponderance of gloss. Andy Leahy, a drilling proponent and blogger who has been following developments in New York, wrote in Shale Gas Now that the Energy Plan was “governance of wishful perception” and he suggested it was “catering to the uninformed, wishful desires of everybody in New York who wants to feel vaguely good about the future, but to stay lit and warm throughout, burning what's extracted out of Pennsylvania.”

Others were enthusiastic about the plan. Pierre Bull, a policy analyst for the National Resources Defense Council, wrote on the agency’s blog, Switchboard:

The already-impressive NY-Sun Initiative is about to become one of the most ambitious solar programs in the nation, with the governor committing, through a filing with the state’s Public Service Commission, $1 billion to the program—that’s right, $1 billion—over the next 10 years. (Governor Cuomo’s text also announces a major new program to help K-12 schools throughout New York go solar. You can read more about that here.) The governor’s goal is to install 3,000 megawatts of solar across New York. That’s enough solar to power 465,000 New York homes, cut greenhouse gas emissions by 2.3 million tons annually—the equivalent of taking almost 435,000 cars off the road—and create more than 13,000 new solar jobs. 

If New York expects to become a national showcase for how to dramatically reduce greenhouse gasses, it has plenty to work with. But assessing how that measure is made – and the degree that it includes natural gas -- is critically important.

By design more a PR gloss and political showcase than a technical document, the daft energy plan still serves a critical role as a catalyst for public discourse and involvement on the politics and technicalities of energy delivery. To that end, public hearings will be held around the state in February and March. (Full schedule here.)

The primary question not mentioned in the energy plan is whether New York will allow exploration to begin for shale gas production. With a recent announcement from Department of Environmental Commissioner Joseph Martens that the state will not issue permits until at least 2015, the governor’s staff has put speculation to rest that we will see fracking in New York anytime soon.

But both landowners and industry interests are mounting legal challenges in an attempt to force the governor’s hand. Tom West, an industry lawyer, is a primary figure behind the challenges, which I wrote about here. (Note that a hearing for West’s case, Wallach v New York state, has been postponed until March 7. This is so the complaint can be filed with a parallel case by the Joint Landowners Coalition, represented by attorney Scott Kurkoski of Levene, Gouldin & Thompson and funded by the Rocky Mountain Legal Defense Fund, an NGO that supports conservative causes.

Regardless of how the challenges to Cuomo’s indefinite delay on fracking turn out, another group has brought up a nagging question about the extent of New York’s shale reserves, and whether development is even viable at current prices. Chip Northrup, a former industry investor, accompanied by a group of critics with backgrounds in geology and industry, have been making presentations, most recently to a state Senate committee. The thrust of their argument is that geological data suggest New York’s shale gas reserves are not worth the bother, but speculators who gamble on them may still cause significant environmental headaches for the greater public.

All the speculation, either supporting or undermining the size of the state’s fossil fuel assets, won’t change this underlying reality: Upstate and New York City need lots of energy now, and tend to consume it in its cheapest and most available form.

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

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

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

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

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

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

Since announcing plans in September, 2012 for the Department of Health to become involved in the review, Cuomo and his staff have refused to talk about the fracking issue except in the most vague terms.  Even outside experts hired to make key assessments are bound by contracts that include a clause prohibiting them from disclosing or discussing the proceedings or records involved.

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

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

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

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

So Ordered Stip.

FOILrequest Final

Solutions to H20 pollution elude officials in Cabot gas field Five years after blast, Pa officials continue tests in Dimock

Five years after the explosion of Norma Fiorentino’s water well signaled all was not well in Cabot’s Marcellus shale gas operation in northeast Pennsylvania, state environmental officials are still trying to gauge the impacts of drilling on the water supplies of local residents.

The agency is scheduling another round of tests to see whether methane levels in Dimock water wells are safe, Colleen Connolly, a spokeswoman for the Department of Environmental Protection, confirmed this week. It's the latest step in an investigation that literally began with a bang on New Year's Day, 2009. The explosion of the Fiorentino well prompted an investigation by the DEP that concluded water wells serving at least 19 homes contained explosive levels of natural gas that had migrated underground from Cabot’s nearby drilling operations.  Since then, dozens of water wells in Susquehanna County have been taken off line due to methane contamination.

Some of the Dimock residents agreed to a settlement with Cabot, negotiated by the DEP, that compensated the parties with payments worth twice the assessed value of their properties, and systems to filter their water. Others have held out. They believe the systems, which require maintenance, are not an effective answer to the problem and do not filter other harmful chemicals associated with drilling. The settlement was finalized in 2010 under DEP Secretary John Hanger (now a gubernatorial candidate).  Hanger, who headed Governor Ed Rendell’s DEP, had originally pushed for an $11 million infrastructure project, to be paid for by Cabot, to restore fresh water to the residents. Cabot opposed the plan for a water line, and the administration withdrew it soon after Tom Corbett, an industry supporter, was elected governor.

Although Cabot continues to develop the Marcellus Shale throughout Susquehanna County, the DEP has banned the company from drilling within a 9-square mile area around Carter Road until it fixes an unremitting methane problem there.

Working with the settlement as a blueprint, Cabot has restored water to some but not all homes through special filtration systems or bottled water. But problem areas persist. Several polluted homes have been abandoned, including two on Carter Road bought by Cabot. The company bought 1101 Carter Road, once home to outspoken fracking activists Craig and Julie Sautner, and demolished the ranch house last year. It then sold the vacant parcel to a neighbor for a fraction of the purchase price, with a condition written in the deed that no residence could ever be built there. Late last year, Cabot bought the home of Mike Ely, on the south end of Carter Road, although the company has not answered questions about its plans for the contaminated property.

Several other homes in the area remain vacant after having been sold to other parties, reportedly for interest in mineral rights. Three vacant homes happen to be near Cabot’s failed Costello gas well, which officials have indentified as a possible source of methane pollution.  This week, Connolly reiterated that the Costello well, near the intersection of the south end of Carter Road and State Route 3023, was “unviable” and “”remedial work is continuing at the gas well, and Cabot and DEP continue to evaluate results at the water wells.”  In addition to fluctuating methane levels, previous tests have shown levels of iron and manganese that were elevated but within standards in some water samples. Elevated levels of these elements are “not uncommon during gas migration,” she reported.

Before Cabot can resume drilling in the banned zone, Connolly said, the company must “demonstrate compliance” with the 2010 Consent order. “We have scheduled another round of testing to determine whether the gas migration event has ceased,” she added. Connolly could not immediately say how many homes will be included in the sampling collection. Sources in the field told me that the DEP plans to test all 19 homes listed in the consent agreement, but that the agency has not been granted access to all the homes.

As I have found with many stories about shale gas, a central problem is a lack of information. Some of this is because state regulators, dependent on updates from companies that are exempt from many disclosure laws, are still trying to figure out exactly what is going on. And some of it is due to the fact that companies are reluctant to share certain information that casts operations in a negative light. This is all complicated by some residents who feel what is happening on their property is their business, others who want to show the world what they want the world to see, and still others working in good faith to expose and understand problems with the intention of making things better. In short the problem is cast in a muddle of projections from stakeholders with widely divergent interests and ideological footing. Chief among these is Cabot, which possesses the facts about what is happening at its restricted sites and underground, test results, along with rights to the land under question.

In addition to speaking with Connolly and people in the field, I have called and emailed Cabot spokesman George Stark over a period of months for an update. Here is one of my email queries from Dec. 10. 2013:

Hi George,

I’m following up on Cabot’s recent purchase of Mike Ely’s property on Carter Road and have some questions related to that:

Why did Cabot buy the property? 

What plans does the company have for it?  

What is the status of the nearby Costello well? Is it all fixed?

Does the company expect to be able to resume development in the 9-square mile “no drill zone”?

Also, a question related to the former Sautner property now owned by the Mayes: Why did Cabot forever prohibit building a home on the property as part of the land covenant?

 Here is Stark’s response, which came a month later, on Jan. 9, after I left several phone messages:

Tom,

Got your message yesterday about the former Ely property. 

Cabot entered into a private business transaction with the prior owner of the property. The sale was agreed to by both parties and we are now the current owners. 

George

Trying to apply his answer to the questions at hand in any meaningful way was fruitless, so I emailed Stark again:

Hi George 

Thanks for responding. But your statement does not answer any of my questions. Here they are again: 

Why did Cabot buy the property? 

What plans does the company have for it? 

What is the status of the nearby Costello well? Is it all fixed? 

Does the company expect to be able to resume development in the 9-square mile “no drill zone”? 

Also, a question related to the former Sautner property now owned by the Mayes: Why did Cabot forever prohibit building a home on the property as part of the land covenant?

That was January 9. Since then I have also left voicemails. I am still waiting for a reply. If Stark’s response, or lack of a response, has any journalistic value in the meantime, it illustrates how some companies deal with these kinds of unpleasant questions. They ignore them, or offer a statement of fact that appears to be authoritative but is actually irrelevant.

There are people on all sides of the debate over the merits and risks of shale gas development who share a sense or frustration over lack of information. A group of drilling proponents called Dimock Proud has been especially critical of the DEP for implementing the no-drilling zone in Dimock without engaging all the people who live there, including those eager to see shale gas development proceed. In their view, the DEP has been operating too much out of the public eye. The group represents people who are in position to make money when Cabot drills on their property. The Dimock Proud web site features letters to the DEP complaining that the agency has ignored their requests for information -- specicially, explanations of the no drill zone around the problem wells and why the ban applies to people in the 9-square mile area who want to see their shale gas developed. The group stresses this compaint:

Dimock landowners have written you countless letters, signed petitions that we sent to you, and absolutely begged you to let us out of that arbitrary 9-square miles. You did nothing! You didn’t even acknowledge receipt of the petitions.

The controversy over drilling and fracking in Dimock is one of many in countless communities in dozens of developing shale gas basins across the country. Some problems are unique and some universal. But Dimock, just across the border of New York State, was one of the first where the media spotlight focused intensely on the gas boom that is transforming the country. And given the persistence of problems there, it's where it might also shine the longest.

Will law suits bring transparency to NY Fracking decision? Challenge tests Cuomo’s rights to keep review private

New York’s Governor Andrew Cuomo has avoided a decision over the polarizing and potentially damaging issue of fracking for his entire first term, so there is little expectation that he will voluntarily change course during an election year. Yet the governor’s handling of the fracking dispute may become a prominent issue as election time nears, pending the outcome of two law suits that could pry lose information.

How relevant and damaging that information is to either side of the debate remains to be seen, but it will provide potential leverage for both fracking proponents unhappy with the governor’s inaction on the matter, and opponents unhappy with the administration’s secrecy over policy development.

The state’s last public review of draft policy to allow fracking was finished in 2011. Since then, mainstream media outlets have reported on several occasions that a decision was imminent.  In June, 2012, Cuomo staffers told New York Times reporter Danny Hakim that the administration would allow fracking in areas where local officials wanted it -- news that prompted protests and organized opposition from fractivists. Four months later, DEC Commissioner Joseph Martens announced that the agency’s decision would depend on a review of fracking’s impact on public health from New York State Health Commissioner Nirav Shah.

Since then, Martens announced on several occasions that the review would be completed in “a matter of weeks.” Yet that proved to be wrong each time, and lacking any formal timetable, predictions were speculative, based on what appeared to be indecision by the governor himself.

Cuomo has been reluctant to talk about the matter, much less share his strategy on how, when, and whether New York will allow shale gas development. His refrain is “let the science decide,” and with that, he has deferred to Martens. Martens has deferred to Health Commissioner Shah, who is purportedly heading up the health review, which is yet to be shared in any public form. (In his state of the state address last week, Cuomo made no mention of fracking. Moreover, his recently released energy plan calls for increased consumption of natural gas, but doesn’t address the status the state’s policy on whether to allow production.)

Administration officials won’t talk about the fracking issue except in most vague terms, nor will their media staff.  Outside experts hired to make key assessments are bound by contracts that include a clause prohibiting them from disclosing or discussing the proceedings or records involved.

Recently pressed by a reporter on when the public would be able to see the work, Shah replied “When I’m done.” Jon Campbell, of Gannett’s Albany Bureau, reported that quote in an update last month, along with this:

“For the last few months, I’ve said that as the science evolves, we will reflect the science in my recommendations,” Shah said. “As recently as a month ago, we got new data from Texas and Wyoming ,and until I’m comfortable with the state of the science, I’m withholding my recommendation.”

Cuomo said that while his administration has moved quickly on other efforts, such as building a new Tappan Zee Bridge in the Hudson Valley, fracking is a complex issue.

“I want the right decision, not necessarily the fastest decision,” Cuomo said Monday. “When it’s appropriate to move fast, we can move fast. I think we’ve shown that over and over again.”

Cuomo said Monday that there is no timeline, though he “would expect” a decision before Election Day. He said he wouldn’t pressure Shah into a decision.

“But my timeline is whatever Commissioner Shah needs to do it right and feel comfortable,” Cuomo said. “It’s a major decision.”

The reason why the governor is keeping the internal workings of this decision from public view is easily understood but not easily defensible. (More on that here.) From a politician’s view, fracking represents a quagmire of dissention and criticism as much as an economic promise or environmental threat, and Cuomo would be better off without having to make a decision. The next best thing he can do is put if off until after elections.

But that might not be possible. The public expects its elected officials to be up for making hard decisions while accounting for them publically. Cuomo’s unwillingness to share a timeline, protocol, or update on the review (which is subject to public discourse under the State Environmental Quality Review law) has predictably raised challenges from critics, who are now taking the matter to court

Late last summer, the Seneca Lake Pure Waters Association, represented by attorney Rachel Treichler, filed a complaint in state Supreme Court seeking records detailing the mechanics of Cuomo’s administrative directive on fracking. The goal is 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,” according to a statement from the association. The action follows the organization’s unsuccessful attempts to view records related to the study under the Freedom of Information Law.  The DOH denied that request on grounds that the information comes under the category of “exempt intra-agency or inter-agency records.”  The state is now negotiating the case with the advocacy group, with an outcome expected within months, according to sources.

More recently, industry attorney Tom West has filed a complaint on behalf of landowners and Norse, a bankrupt drilling company that operated in upstate New York. The suit, Wallach v. New York State, references State Environmental Quality Review (SEQR) law, which requires environmental reviews to be completed in a timely and public manner. It claims that the delay led to Norse bankruptcy, and is “legally unjustifiable” as well as “arbitrary, capricious and an abuse of discretion.” In an interview last week, West likened the situation to “giving a fan a football during a football game and letting him walk out of the stadium.”  He elaborated: “Government is not allowed to simply shut down this process. They have to finish the game. If they want to say fracking is not safe, then they have to say it. If they want to say fracking is safe within standards, then they have to say it.”

The complaint is scheduled for a hearing Jan. 24. If the case progresses, it will give the plaintiffs leverage of subpoena to produce records and emails that will undoubtedly produce fodder for criticism of the administration’s private handling of the fracking.  A likely outcome of both the Wallach v. New York State and the SLPW case is that the fracking story will morph again from a scientific to a legal to a political issue at a time when the governor is vulnerable to outside pressure.

Trespassing case tests driller’s control over leased land Activist banned from parks, schools, stores w/ Cabot lease

Vera Scroggins in front of a drilling rig in Dimock Township
PHOTO JAMES PITARRESI

After being charged with trespassing, anti-fracking Vera Scroggins has been banished from land leased by Cabot Oil & Gas. That’s no small deal. The Texas drilling company has leases on more than 200,000 acres -- nearly 40 percent -- of Susquehanna County where Scroggins lives, including rights to property of friends, neighbors, stores, parks and schools.

The Cabot v. Scroggins trespassing case might have been relegated to a journalistic footnote in a national conflict over shale gas development and high volume hydraulic fracturing. It has long been standing practice (and common sense) for companies to restrict access to operations where crews are using heavy equipment and hazardous chemicals under high pressure to drill wells and fracture bedrock a mile deep in the ground.

Scroggins admittedly crossed into designated work areas on occasion, but there were no signs denoting trespass zones, she said, and her ventures into drilling territory in each case were in good faith to openly ask questions and seek information. (Some background on this in a moment.) The remarkable and possibly groundbreaking aspect of this case, however, is not the charge or the defense, but the resulting preliminary injunction the Susquehanna Court of Common Pleas issued on October 21, 2013. Pending trial of the case this spring, the order forbids Scroggins from setting foot on land owned or leased by Cabot, “including but not limited to” well sites, well pads, and access roads. That language, interpreted by Scroggins lawyer Gerald Kinchy, in effect forbids Scroggins from going to certain school grounds, her auto mechanic of 23 years, many other businesses, the county jail, and homes of dozens of friends, among other places. Doing so puts her at risk of contempt of court. (See the full order, embedded below.)

Cabot’s action raises the broader issue of how much control energy companies have over land they lease. While mineral extraction is their stated intention, many standard leases give companies ill-defined and seemingly limitless discretion over land use. “When drilling companies lease rights to land for mineral extraction,” Kinchy said, “does that mean they have rights to exclude other people from that land, even property owners?”

Apart from the Scroggins case, that question has mostly applied to practical matters of daily extraction operations. A company such as Cabot might own rights to a large tract, but it is generally concerned about gaining or restricting access to active work areas. Conflicts might crop up over where exactly a company might build a pad, access road, or pipeline, and at what inconvenience or loss of land use to the landowner. When that happens, lease language and the respective parties’ appetite and resources for litigation come into play, with the company often in a position of leverage.

The Scroggins case breaks new ground. Issues of practicality (and enforcement) aside, it probes whether a company can legally keep a person from stepping foot on leased land outside of established work zones, including public spaces where others are allowed.

Now for some background. Cabot Oil & Gas operations have drawn numerous violations from the state and much national and international media coverage due to recurring water pollution problems in Dimock Township. The company has been a particular target for critics and activists, including Scroggins, who lives in the neighboring township of Brooklyn. (More about that here.)

In Under the Surface, I describe Scroggins this way:

 … a grandmother, amateur videographer, and advocate for many causes, including home births, home schooling, and no mandated childhood vaccinations. In 2009, she took up the cause as a watchdog against oil and gas operators who began leasing large tracts of northeast Pennsylvania to develop the Marcellus Shale. “We’re extra eyes and ears for the DEP,” she told [a community organizer]. “They don’t have enough workers and we have to pick up the slack.”  

Footage from some of Vera’s vigilante patrols in 2009 shows encounters with roughnecks and pipeline workers, some reacting with amusement or annoyance to the woman with a home video camera showing up at these remote and often inaccessible work sites and peppering them with questions. Some called her “ma’am” and briefly addressed her questions; some directed her to the foreman, who almost always asked her to leave; and some simply ignored her or walked away. These brief encounters typically punctuate long unedited footage of vacuum trucks, excavation equipment, and hay bales. Vera also taped public forums and interviews with residents … recounting their experiences with gas development. These videos she posted online, where they joined a broad and growing collection of depictions of Susquehanna County gas development by other independent media, advocates … and professional news outlets. They generally … presented aspects of drilling that lent themselves to visuals: truck traffic, derricks, flaring, fracking, and heavy machinery cutting swaths through the countryside.

Until the injunction, Vera had intensified her efforts, serving as a tour guide for parties interested in seeing and learning about drilling and fracking from a perspective other than that offered by company tours and commercials. On occasion, she has helped me locate operations in the region (viewable from  public roads.)

Cabot poses a sound argument that those venturing onto work sites without permission pose an annoyance, distraction, and/or safety threat. But Vera’s presence has become iconic of another kind of threat to the company – bad public relations and control over its image. The scope of the injunction against Scroggins invites wonder whether Cabot attorneys who crafted the language were unintentionally imprecise, or whether they are testing a strategy to eliminate their Scroggins PR headache once and for all, while sending a message to other activists.

George Stark, a company spokesman, was unavailable to answer this and other questions.

Court Order 10-22-13 New Date 1 2 14 Next Court Day by Thomas Wilber