by Roger Downs, Chapter Conservation Program Manager
It appears that the "fix is in" on hydrofracking, but citizens can still turn things around.
When the public dogged Andrew Cuomo about hydrofracking on the campaign trail in 2010, the future governor proclaimed that he held drinking watersheds as "sacrosanct" and would rely on the science in deciding whether to allow the controversial natural gas development technique to move forward. But 10 months into his administration, public frustration is mounting as he stands by the same platitudes while allowing politics - not science - to guide the process.
With his eye on a future national office, Cuomo is less interested in exhibiting precaution than forging a standard for drilling that will resonate with a jobs-hungry American electorate. The second draft of the Supplemental Generic Environmental Impact Statement (SGEIS), released in its entirety on September 7, has shown that the DEC has done very little in the past two years to demonstrate that hydrofracking can be conducted safely.
Instead, the DEC has offered a series of mitigations that have increased protections for certain areas while permitting drilling in others - but with no underlying sense that hydrofracking can be done safely in the places where drilling is to be permitted.
To be clear, many of the mitigation proposals are welcome - such as a drilling ban on all state forest lands, increased setbacks from drinking water sources, and mandated chemical disclosure. But the fatal flaws of the original draft study remain - no cumulative impact assessments based upon full build out modeling, no public health risk assessments, and no clear plan for how to deal with all the drilling wastes.
Perhaps the most profound example of this disconnect is the decision to ban drilling from the New York City and Syracuse drinking watersheds. This policy deviates from the previous Paterson administration's position that a ban would constitute a legal takings and the state would be responsible for compensating landowners and energy companies for losses on their leases and mineral rights. Syracuse and NYC's water, like much of rural New York's, is so pure that it goes from reservoir to kitchen faucet unfiltered.
Multi-billion dollar price tag
The EPA closely monitors the city's water quality under a permitting structure called a filtration avoidance determination (FAD). If at some point water quality standards cannot meet public health requirements, the EPA will order filtration plants to be constructed as an alternative - a mandate that comes with a multi-billion dollar price tag.
In the past year, EPA made it clear to the DEC that it will rescind the FAD if the possibility of drilling is present in the watershed, rather than waiting for the first instance of contamination. The DEC had no choice but to ban drilling within the FAD boundaries or else incur the immediate costs of filtration. But the official justification for the ban, written in the SGEIS, is that the sum total of drilling activity - the construction of access roads, well pads, and the movement of millions of gallons of potentially hazardous wastes - presents an unacceptable risk to water quality.
If that is the case, then how can the practice be justified for any other region of the state? Millions of New Yorkers within the drilling zone get their water from their own private unfiltered water wells, but do not have the benefit of EPA monitoring or protection, and no amount of mechanical filtration can adequately remediate the chemicals that are in the fracking fluids.
Economics trump health
Cynically, watershed protection in the SGEIS was driven primarily by the negative economic outcome of drilling - not public health concerns. In truth, it would appear that economics is driving the entire process. The drum beat for jobs creation and economic development has shifted DEC's focus from determining the true risks of hydrofracking to creating the financial and permitting structure to make drilling happen.
As part of the SGEIS analysis, the DEC commissioned a study of the socioeconomic impacts of expanded natural gas drilling that portrays, with little nuance, gas development as a jobs creating juggernaut. The study, which cost the DEC $1,000 per page, failed to acknowledge basic economic concerns of the boom-and-bust cycles of extractive industries, losses to competing industries such as tourism or agriculture, the lending crisis associated with gas-leased properties, or the externalized costs born by communities.
It did, however, do something remarkable in that it used long-term predictive modeling, in several phases, to demonstrate the cumulative economic impact of drilling over three separate regions of the state for a 30-year period.
For years now, the DEC has been arguing that it could never conduct a cumulative environmental impact analysis because the future course of gas well development would be impossible to predict. It would appear that if the task can be done to generate rosy economic numbers from mapping theoretical well development, it can also be employed to get a sense of how air quality will be affected, how much capacity the state will need to treat millions of gallons of frack fluid, or how much sensitive habitat and biodiversity we will lose as a result of the fragmentation from pipelines and well pads.
Public hearings in November
All these issues will come to a head in November when the DEC will hold public hearings (see here for dates). What will be unusual about this round is that the hearings will serve two purposes: to not only hear the public on its issues with the SGEIS but also solicit its opinion on the new draft regulations issued in October. While the Cuomo administration sees this as a noble cost-saving measure that cuts through unnecessary red tape, others might view "the double dipping on hearings" as a subversion of the process, like holding the trial and the sentencing hearing at the same time.
The sad undertone from this lapse of process is that the state has already decided to move forward on fracking - and nothing said in these hearings is going to make any difference.
Rigs before regs
As to standards, an agency must complete the findings of its impact statement under the State Environmental Quality Review Act (SEQRA) before it can start the rule-making process (regulations) under the State Administrative Procedures Act (SAPA). Even worse than the proposal to commingle the two processes is the DEC's intention to start permitting drilling applications before the new regulations are even completed.
Commissioner Joseph Martens has publicly stated that he will be able to enforce the provisions of the SGEIS, even if they are not rooted in regulation. If we were to accept this as true, it still provides little comfort in the practical application of permitting. The DEC can choose to enforce - but they can also choose to negotiate or bend - the rules, and it is the public that, without formal regulations on the books, will have little recourse but to sue the DEC for noncompliance. The public that cannot enforce the non-binding SEQRA permit conditions.
The first two years of permitting will be pandemonium. The new required fuels, equipment, setbacks, and procedures will inevitably be difficult to comply with. There will be messy conflicts on the well pad that will push inspectors and drillers to the edge. Without regulations on the books, mitigation standards will be relaxed or ignored and there will be unnecessary degradation - with no legal remedy for the public.
The dSGEIS remains the most pressing forum for whether fracking is safe enough to be permitted in New York, but the real proving ground will be the 2012 budget process. The DEC clearly does not have the staff to oversee any regulatory program and that is a huge roadblock to development. The Cuomo administration is going to seek massive augmentation of DEC staffing, perhaps as many as 200 new inspectors, and will try to create a severance tax on natural gas revenue to pay for it. For those of us who have been fighting to save DEC staffing positions for years, the challenge will be to support that goal without creating a gas well "permitting mill."
While it may appear that the fix is in, the antidote is still public participation. Even though the DEC seems to be on a predetermined path, we have an opportunity to turn things around, but it will require thousands commenting on the draft and pressuring lawmakers to put a halt to the drilling madness. See here for what you can do.
Roger Downs is the Chapter’s Conservation Program Manager in Albany.