by Roger Downs, Chapter Conservation Program Manager
Governor David Paterson left office with many important environmental accomplishments under his belt—such as the Climate Action Plan, the Bigger Better Bottle Bill and a comprehensive E-Waste Recycling law.
But he will most be remembered as the governor who systematically dismantled the Department of Environmental Conservation through severe and disproportionate budget cuts and fired a DEC commissioner who quietly warned that such action would risk human life and irreversible harm to our natural resources.
Though he had tremendous guidance from green giants such as Judith Enck, Peter Iwanowicz and Pete Grannis, Paterson seemed to counter every environmentally beneficial action with harmful policies designed to undermine regulations, impede enforcement and mollify industry. Whether this duality was a function of advice from competing advisors— namely his secretary Larry Schwartz who seemed put off by any environmental initiative—or merely the desire to please everyone, it often pleased no one.
Perhaps the best example of Paterson’s “bipolar” approach is his handling of horizontal hydraulic fracturing, a natural gas extraction technique. The long view of history may see him as the governor who saved New York from one of its worst environmental debacles, while Pennsylvania transformed its rural landscape into industrial grid-works of pipelines and well pads. He deserves a lot of credit for taking a precautionary approach to drilling, but in the evolution of his hydrofracking policy, every step of the way was a series of mixed messages and contradictory actions.
Mixed messages
The most profound and decisive of these actions came in July, 2008, when Paterson signed a controversial bill to facilitate fracking but then ordered a comprehensive study which halted horizontal hydraulic fracturing until new permitting conditions could be established. Essentially, the order placed a “de facto moratorium” on horizontal drilling.
Arguably, this was one of the strongest actions taken against the natural gas industry in our country’s history. But the resulting scoping process and the draft of the study, known as the Supplemental Generic Environmental Impact Statement (SGEIS), were a disappointment and reflected industry bias and incomplete analysis. DEC staffing shortages and the accelerated date for completion seemed to affect the quality of the document as well.
In the fall of 2009, the public shot back at the weak study by sending more than 13, 000 comments criticizing the lack of consideration of cumulative impacts, from wastewater infrastructure, pipelines and compressor stations, to air pollution, climate change, human health and other critical deficiencies. But the signals coming from the governor’s office reflected a different attitude. Marcellus shale gas now played a prominent part in the state’s energy plan, the executive budget pushed for an augmented permitting staff to facilitate drilling, and administration officials and agency heads mounted a public relations campaign to assure New Yorkers that drilling was safe.
Summer of calamity
And then, in 2010, Pennsylvania’s “summer of calamity” unfolded. That state’s Dept. of Environmental Protection confirmed that gas drilling contaminated drinking water wells in Dimock, and the media began to focus on other spills, leaks and accidents. Josh Fox’s documentary, “Gas Land,” premiered on HBO, and the Environmental Protection Agency began its critical look at the impacts of hydrofracking on water resources. Public outcry grew louder.
The Senate passed a bill in August suspending all pending and future permits in Marcellus and Utica shales until May 15, 2011. The bill gave the incoming administration some “breathing room” and staved off a final decision on the SGEIS. Governor Paterson then began to show signs of concern that New York was still not ready to move forward with drilling and indicated that he would not finalize the SGEIS regardless of whether its findings made it to his desk.
When the bill reached the Assembly in late November, the gas industry began to panic and launched a fierce campaign claiming that if enacted, the “time out” on fracking would shut down all drilling in New York. Since the bill did not differentiate between horizontal and vertical drilling, the industry claimed that this “flaw” would impede vertical wells already in development, costing thousands of jobs and millions in revenue.
Of course, the truth was that only a handful of vertical well permits would be delayed by five months; the bill passed the Assembly 93-43. But the industry’s misinformation campaign lingered in the press, and Governor Paterson began to question the legitimacy of including vertical wells in the moratorium when the bill came to his desk.
This inclusion of smaller vertical wells in the bill was no accident. When the Assembly originally attempted to advance a bill calling for a moratorium on horizontal drilling that would be lifted upon the completion of an EPA study, the industry made a threat: for every single horizontal well they would be prohibited from drilling, they would drill 16 wells with 16 separate well pads every square mile (which is currently legal spacing).
Based on this threat, the drafters of the bill had no choice but to include vertical wells as well. Also lost in the debate was the fact that gas companies have been explicit that the current vertical wells they are drilling in Marcellus and Utica shales will be converted into horizontal wells as soon as the SGEIS review process is complete. This would give them an unfair advantage in “staking claims” to areas that may in the future be off limits.
Many activists pushing the bill felt that drillers should not be allowed to sidestep the ongoing environmental review process through a loophole for vertical wells. It is also important to remember that Dimock, Pa. —the poster child for poor drilling practices—saw the town’s drinking water contaminated by vertical wells similar to wells that are currently being drilled in New York.
On December 11, Governor Pater-son vetoed the bill on the grounds that it would cost “hundreds if not thousands of jobs” and “would have substantial negative financial consequences for the state” for a process that has “no demonstrated environmental harm.”
In its place, Paterson issued Executive Order 41 that compels the DEC to complete its review of the more than 13, 000 comments and integrate substantive responses into a new draft SGEIS. This draft is to be published June 1, 2011, and the DEC is to accept public comment for at least 30 days and suggests the scheduling of public hearings. The order also specified the continuation of the “de facto moratorium” on horizontal drilling until the finalization of the entire State Environmental Quality Review Act process.
A significant win
While the unfounded rationale for the veto irritated the environmental community, the executive order was met with great fanfare, and competing press accounts declared victory for both sides. Like most of Paterson’s decisions, there was something for everyone to grumble about, but at the end of the day the mandate of a second draft is a significant win for those wishing to expose hydrofracking’s dangers.
Executive orders do not have the same strength as laws, and incoming governor Andrew Cuomo could discontinue the order and accelerate his own drilling review, but that seems highly unlikely. Cuomo will not want to fill his already crowded six-month agenda with something so controversial that has no short-term positive economic impact.
The Atlantic Chapter will be seizing the opportunity presented by EO 41 to finally insert cumulative impacts analysis into the SGEIS and correct multiple deficiencies. To date, Cuomo has not taken a clear position on hydrofracking, but we hope that he will be as cautious as his predecessor—minus the hedging.
As for the former governor, we owe him a debt of gratitude for, in the end, holding off the drilling rigs. We only wish he had demonstrated the same restraint when New York’s environmental agencies were on the chopping block.