To Frack or Not to Frack: Cuomo Calls Another Intermission
The saga of fracking in New York continues to unfold like a serial drama with no clear conclusion, but every plot twist imaginable. With the heightened urgency of a certain February 27 regulatory deadline, activists feared Governor Cuomo would finally give in to the oil and gas industry and allow the drill rigs to cross the border into New York. But instead there came a surprising 11th hour reprieve. Coordinated public outcry and resistance leading up to the decision apparently changed the mind of a governor who was hours away from allowing the first wave of drilling to move forward. For casual followers of New York’s most compelling daytime theatrics, here is a synopsis of the past few months:
In January, celebrity-led protests that included luminaries such as Yoko Ono, Sean Lennon, Pete Seeger, Mark Ruffalo, Deborah Winger, and Natalie Merchant overwhelmed the State of the State address, budget hearings, and the DEC comment period with thousands of concerned New Yorkers. More than 240,000 comments were submitted on the draft regulations—in spite of a narrow 30-day public comment period over a busy holiday season. This record-breaking public rebuke largely panned the entire process as incomplete, improper and unwise. Aside from having to wade through hundreds of thousands of comments, some of which were lengthy and technical, the DEC still awaited the approval of the Department of Health (DOH) approval of the proposed regulatory program.
Last September, DOH Commissioner Nirav Shah was directed by Governor Cuomo to review the 4,000+ page SGEIS on fracking and the supporting regulations to determine if the established mitigation protocols would be sufficient to protect public health. Without this review the SGEIS could not be deemed complete. In other parts of the U.S., fracking has been linked to a broad spectrum of health impacts ranging from loss of smell, memory problems, and headaches to serious respiratory illnesses, neuropathies, and cancers.
On February 12, Commissioner Shah declared that his review of the SGEIS and supporting regulations would not be completed in time to meet the statutory deadlines for the revised regulations. Thus, the process expired February 27. In a letter to DEC commissioner Joseph Martens, Shah highlighted three separate studies on the public health implications of fracking—from the University of Pennsylvania, Geisinger Health Systems, and the federal Environmental Protection Agency—that would be pivotal to his determination. These studies are not expected to be finalized until 2015 at the earliest. Because of this commitment, it would be difficult for Dr. Shah to prejudge the outcomes of these investigations and advance his own assessment.
At the time of the announcement, the Sierra Club applauded Dr. Shah for waiting for the best available health information before making crucial decisions on fracking. By letting the regulations expire, Governor Cuomo and DEC Commissioner Martens showed great leadership in letting science drive the timeline. But there were also some troubling undertones from a separate DEC announcement that cast an uncertain future over what, at first glance, seems like a long delay. In a press release, Commissioner Martens stated that:
“…this does not mean that the issuance of permits for high-volume hydraulic fracturing would be delayed. If the DOH Public Health Review finds that the SGEIS has adequately addressed health concerns, and I adopt the SGEIS on that basis, DEC can accept and process high- volume hydraulic fracturing permit applications 10 days after issuance of the SGEIS. The regulations simply codify the program requirements.”
The Sierra Club has long opposed this “rigs before regs” approach on the basis that environmental review processes were never meant to serve as de facto regulatory programs. The DEC may feel confident that they can enforce mitigations proposed by the SGEIS—but it is the public that will not be able to enforce those conditions if the DEC fails to carry out its responsibilities.
The Chapter has already mobilized our legal team and it is prepared in the event the DEC moves forward with permitting before a new regulatory review is finalized. While some have suggested this posturing by DEC was merely to appease the anticipated anger from the industry for yet another delay, we will be well prepared if they chose to move forward without regulations.
At the time of this writing, it is unclear if there will be any official order from the governor to extend the de facto moratorium on HVHF until the conclusions of these studies and proper review of the findings. Since the initial announcement of the delay, the Cuomo administration, in various press statements, has walked back any commitment to wait for the best science - stirring up further confusion as to what will happen next.
DEC General Council Stephen Russo, who, in 2011, was brought in to construct the legal defense of SGEIS, is moving back to private practice, which indicates some level of surrender. Robert Hallman, Cuomo’s Deputy Secretary on the Environment – and chief strategist on fracking - is moving on has well, taking with him some of the credentialed cover Cuomo would need to advance a new drilling program. But in spite of these appearances, nothing is guaranteed.
Fortunately, the Assembly has passed legislation that will establish a two-year moratorium on the finalization of the SGEIS in anticipation of the completion of these health studies.
Comparable language has been introduced in the Senate. Passage of this legislation will ensure that Dr. Shah is given appropriate time to wait for emerging information and to further his own investigation, while relieving the political pressure on him. In addition, the Assembly legislation calls for a comprehensive health impact assessment —including a public comment period and review. This will provide Dr. Shah with a substantive study that is specifically focused on New York health concerns while he awaits the results of studies primarily focusing on the experiences other states. But what chance does the legislation have of passage in the Senate?
In spite of bipartisan support, the Senate, with its tenuous power structure, may stumble in pushing an extended moratorium based on a health impact assessment. The Senate may have the votes, but not the leadership, to advance legislation.
The 2012 fall elections yielded a three-seat advantage to Senate Democrats, but five breakaway senators from the party, calling themselves the Independent Democratic Conference (IDC), chose to share power with Republicans in exchange for leadership posts. Perhaps the most inconceivable aspect of the arrangement is that the IDC, while gaining some control over the Senate floor activity, has allowed the committee structure to be controlled by the Republicans, even though technically they should be in the minority. In spite of the fact that the two-year moratorium is sponsored by and has the full support of the IDC, the rest of the Democratic conference and at least a dozen Republicans, the bill must first advance through the environmental conservation committee. Its majority membership includes some of the Legislature’s most ardent fracking supporters.
Even if the moratorium passes the Senate gauntlet, it will end up on the governor’s desk, where the prospects of it getting signed are still uncertain. The last time a fracking moratorium bill made it to the governor’s desk (Gov. David Paterson) it was vetoed, but resulted in an executive order that in many ways surpassed the original moratorium in advancing a deeper understanding of fracking’s impacts. Getting the bill on Cuomo’s desk is victory in that it forces him to make some public policy decision, even if he denies its passage.
To date, the press has poked fun at Cuomo’s brooding indecision on fracking, depicting a Hamlet-like anti-hero who agonizes over whether to frack or not to frack. But the simple reduction of his public hand wringing and obfuscation fails to capture his possible deeper vision for the Southern Tier’s “shale country.”
In the past year, Cuomo has aggressively pushed to increase milk production for the burgeoning yogurt industry, promote wine and beer making, and augmented tourism and recreational opportunities in areas targeted for drilling. He also is investing hundreds of millions of dollars into renewable energy and an efficient smart grid to deliver that power.
These massive allocations indicate that the governor understands the nature of the upstate economy, which is inherently incompatible with the short-term gains of natural gas development. While there is ample evidence that the governor has been toying with the idea of a limited fracking program moving forward, there is equal proof that he has been quietly laying the ground work for an alternative economic vision for the Southern Tier, one which may be well in place before any final decision is made on fracking.
In 1983 Andrew Cuomo’s father, Governor Mario Cuomo, closed a $6 billion nuclear plant (Shoreham) on Long Island at the tail end of its construction out of science-based concerns for public health and safety. It was a gutsy political call—but it was the right one.
Fracking is Andrew Cuomo’s Shoreham and the decisions he makes in the coming months will reverberate for decades, both in terms of the health of New Yorkers and our prosperity within the clean energy economy. As we approach this drama’s next intermission, in anticipation of the third act, we must recognize that no matter what the analogous play is— be it Hamlet, Richard III, or some second-rate farce—we cannot be content with the role of spectator. The Sierra Club and the activist community must continue to play our part, for it is public participation that has gotten us this far.