by Roger Downs, Chapter conservation program manager
The last week of legislative session in Albany is usually an intense time of late-night negotiations and fierce public advocacy as state government tries to make up for months of inaction in just a few days.
This has been exceptionally busy year, with major issues (same sex marriage, rent control, property taxes, SUNY tuition hikes and power plant siting) dominating the back room sessions and flooding the halls with protesters.
Noticeably absent from the end-of-session calendar is hydrofracking, the controversial natural gas extraction technique that in previous months dominated headlines and captured the attention of lawmakers.
In April and May, the Sierra Club helped bring thousands of activists to Albany in a relentless string of protests, marches, lobby days and hearings to call for bans, closure of drilling loopholes, and the strengthening of environmental laws. And while the noise in Albany intensified, events were unfolding elsewhere that only increased the urgency to stop this mad march toward expanded drilling:
• The New York Times presented a scathing, three-part series revealing that the EPA had suppressed reports concluding that New York and Pennsylvania’s sewage treatment facilities are incapable of treating drilling wastes --– including levels of radioactivity 100 to 1000 times higher than drinking water safety standards.
• Attorney General Schneiderman sued the Delaware River Basin Commission for failing to conduct an environmental impact statement on hydraulic fracturing permits before going forward with an ill-conceived rule-making process.
• The Assembly held hearings on the public health impacts of hydrofracking and the testimony of a dozen medical professionals, endocrinologists and public heath experts revealed how little we know about the human pathology of drilling –-- and what we do know indicates there could be widespread issues.
• Dozens of municipalities and townships amended zoning regulations to prohibit fracking within their borders.
• Credit unions and lending agencies sounded the alarm that drilling is a liability to property values and they will not provide mortgages to leased land or the land immediately adjacent to drilling activity, potentially preventing millions of acres of New York real estate from being bought or sold.
• And a natural gas well in Bradford County, Pennsylvania, blew out, discharging thousands of gallons of water containing fracking chemicals into a nearby creek. Seven households were evacuated from the area as a result. Chesapeake Energy, the state’s largest drilling company, suspended all operations until it could determine what went so catastrophically wrong.
How is it that after all this activity the Legislature will have nothing to put before the governor to sign that will protect New York from unscrupulous plans to drill? The answer is simple. The Republican Senate Majority blocked anything remotely anti-drilling. Dean Skelos and his fellow leaders believe that every moment spent talking about hydrofracking is an opportunity to lose political capital. Conveniently, all 32 Senate republicans have proclaimed, in lock step, that they are “waiting for the conclusion of the DEC study before making a decision.” But while they employ this cynical political calculus, toxic drill cuttings and fluid wastes from Pennsylvania are coming over the border into New York landfills and treatment facilities. Energy companies continue to pursue leases and drill exploratory vertical wells, and local governments struggle to control the impacts of hydraulic fracturing. If the Senate does force a “wait” until the Department of Environmental Conservation (DEC) finalizes the SGEIS and issues permits in the coming months, there will be no opportunity for the Legislature to review the findings or fix shortcomings in the DEC’s permitting program.
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This is especially disturbing because the DEC has already identified areas where it lacks statutory authority. Meanwhile, the Assembly, under the Leadership of Speaker Silver, Environmental Conservation Chair Sweeney and Assemblywoman Lifton passed three important pieces of hydrofracking legislation at the end of the session:
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A.7400 Sweeney/Carlucci S.5592 While the DEC is studying the environmental impacts associated with fracking, there is no guarantee that the Division of Mineral Resources will not press ahead with permitting by the end of 2011. This bill will suspend all permitting until June 1, 2012, giving us at least one legislative session for lawmakers to set things straight.
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A.7013 Sweeney/S.4616 Avella – Classifying Fracking Waste as Hazardous: Even though fracking chemicals arrive at the drilling site as regulated hazardous materials, federal and state exemptions allow drillers to treat the same drilling wastes leaving the site as standard industrial waste. This bill will update current regulations so that all resulting waste from natural gas drilling meets the definition of hazardous waste in New York State law and is subject to all generation, transportation, treatment, storage and disposal laws and regulations. This bill has been especially pressing as an increasing waste stream from Pennsylvania is already coming into New York.
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A.3245 Lifton/S.3472 Oppenheimer – Restoring Local Protections Over Natural Gas Development: This bill clarifies that local governments retain the right to enact and enforce zoning laws of general applicability with respect to land use within their jurisdiction when confronted with the negative impacts from oil and gas development. The burden of oil and gas development is an unfunded mandate on upstate communities if they are not allowed to use the most basic land-use planning tools to protect unique local assets.
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While little of substance is achieved through one-house victories, it’s important to remember that the process of fighting for legislation still can have incredible influence over future policy even if the bill falls short. The ultimate decision-maker, Governor Andrew Cuomo, is watching. All these recent developments --- the rallies and lawsuits, lobbying and exposes --- have all made important contributions.
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On July 1, the DEC will release its second draft of the SGEIS, under the conditions established by Executive 41. The Governor’s Office has specifically asked for an analysis of the Chesapeake blowout in the next document. Even without this additional work, it is difficult to conceive that, after reviewing 13,000 substantive public comments on the original draft, the DEC can craft a satisfactory framework for adequate regulations. Fortunately, the current de facto moratorium on high-volume horizontal drilling is attached to the review process and will not be lifted until the process is finalized. The moratorium does not end on July 1, 2011 as some media outlets have reported.
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It is indeed disappointing that in the final hours and frantic confusion of the 2011 legislative session, hydrofracking priorities will not be in the mix but we are, perhaps, victims of our own success. The argument against fracking has been so compelling that few state lawmakers believe, on either side, that drilling will happen anytime soon. The urgency to act is tempered by the notion that this will be a drawn out process. But from the Sierra Club’s perspective, there is danger in complacency and, as we approach the second draft of the SGEIS, we will make a tremendous push to double the public comments, substantially expand the content of the study, and fight to expose its deficiencies. Please continue to fight alongside us.
Roger Downs is the Chapter’s conservation program manager in Albany.