EWG Sues Cuomo Administration
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September 21, 2012By Alison Rose Levy, AlterNet, Sept. 19, 2012
Governor Andrew Cuomo appears to have hit the pause button on once-imminent plans to frack New York. This is a turnaround from June, when someone in his administration leaked to the New York Times a tentative plan to begin drilling in New York’s Southern Tier. In place of the predicted post-Labor Day announcement, the governor hinted in a recent radio interview that he’s in no hurry to launch into the controversial practice. Cuomo “isn’t going to pressure the state agency into making the decision by a certain date, such as the upcoming Election Day or by the end of the year,” reported the Ithaca Journal .
Cuomo, a popular governor, may be reluctant to sacrifice his 73-percent approval rating to a controversial practice. And why should he? Given its wide-ranging economic downsides, fracking is no economic boon for the majority of taxpayers and businesses. The main rationale for it may well be to help overextended gas and oil companies avoid taking a loss.
“Unfortunately, shale economics have relied heavily on flipping land for profit rather than actual drilling results,” explains financial analyst Deborah Rogers. “That is why it is paramount [for gas companies] to gain access to drilling on lands they have already leased. Typically they lease, drill a few wells and then proclaim the field ‘proved up’ which then enables them to flip it for multiples of the original lease costs.”
Communities are then left holding the bag from impacts to air and water quality, and well as human health that may result from fracking. While industry is happy to frack with abandon (and without regulation), some proponents of fracking, like New York City Mayor Michael Bloomberg, claim that if it can be done safely, it should be allowed. So, what would constitute real safety and is it possible that it could be enforced in a state like New York?
The Safety Trifecta
New York has always represented the best opportunity for pushback to the gas and oil industry. Unlike Wyoming or other first-to-frack regions where the dispersed population naively leased land without anticipating the now well-documented economic, health, environmental, and political downsides, New York is a well-informed, well-organized, vocal, and media savvy population. The state is fertile ground for mounting mobilization, exposing an industry that prefers to spend millions on PR, fines, lobbyists, and political contributions rather than allow itself to be regulated. There are three basic reasons why the industry strategy has misfired in New York: water, values and Pennsylvania.
In contrast to the underpopulated or desert regions where fracking first launched, folks in the population-dense East don’t want their policy makers to dismiss, guess or take the word of vested industries about the risks to the health, and water and food supplies of downstream mass urban populations. And for policy makers, that translates into the need for either an outright ban or complete fulfillment of what I call the Safety Trifecta:
- Precautionary assessments of all impacts.
- Strong regulations.
- Committed enforcement.
So far, New York is lacking on all three counts.
A Regulation-Resistant Industry
At the outset, fracking was deregulated by the Halliburton Loophole (embedded in the Bush-signed 2005 Energy Bill). That gave the gas industry a running start to amass land in the arid West and Southwest, where the prevailing “don’t tread on me” ethos prized lone ranger-style independence over looking out for one’s neighbors But then fracking came East into a new political context.
When one man’s right to drill translated into community-wide water contamination, blue state residents didn’t retreat. They paid close attention. The fracking-induced community destruction, high-handed politics and lack of industry regulation and accountability in Pennsylvania has given New Yorkers a complete view of the so-called regulation of fracking.
What does this consist of? In Pennsylvania, there has been little foresight, minimal collection of data, poor enforcement, and even harassment of citizens, as when attendees at a public Gasland screening were placed on a Homeland Security watch list. This year, the PA legislature passed Act 13 , an ALEC-template bill, which gave drillers license to drill anywhere, and prevented doctors from revealing to patients the fracking chemicals found in their blood. In late July, a court struck down parts of Act 13 as unconstitutional.
No amount of PR can hide the industry’s visible actions, which former PA governor Ed Rendell, a Democrat, warned about at a 2011 Pennsylvania Shale Conference. Pointing to 100 violations committed by drillers, Rendell contended that the industry had hurt its own public image. Citizens who question fracking are “raising serious and legitimate issues,” he said. “They express the fears of not just a few militants, but the fears of a lot of good, hard-working Pennsylvanians.”
But his call to industry accountability was ignored. This past week, the drillers descended into issuing slurs, via billboards mounted in Pennsylvania that characterize environmentalists as “green slime.” But in response, many citizens donned T-shirts and sported signs proudly declaring themselves to be “green slime,” transforming the would-be insult into a badge of honor.
With the industry’s stubborn response to any criticism, it’s evident why some experts contend that regulations can never work. This is no novelty. Regulation-defiant industries across diverse sectors have undermined government regulation of a whole host of products and industries, including toxic chemicals, genetically modified organisms, and many more. This happens consistently despite the lip service politicians pay to doing fracking, GMOs, or whatever…“safely.”
Enter Mayor Bloomberg and the Environmental Defense Fund
NYC Mayor Bloomberg is the one currently attempting to “do fracking safely” by bypassing the pesky political process and deploying personal largesse. He gave a $30 million donation to the Environmental Defense Fund, charging it with crafting regulations. The EDF supports fracking because it’s not “going away any time soon.” So says Mark Brownstein, chief counsel for the EDF Energy Program, who acknowledges that fracking “can never be made entirely safe; like any intensive industrial activity, it involves risks. But having studied the issue closely, we are convinced that if tough rules, oversight and penalties for noncompliance are put in place, these risks become manageable.”
“I can write up the best possible regulations on paper,” says Albert Appleton, a former commissioner of the New York City Department of Environmental Protection and an international consultant on environmental sustainability, “But is industry going to play ball? No one can compel this powerful industry to comply. For them, it’s the cost of doing business to do what they do, and pay the fines.”
Are New York Regulators Ready to Enforce?
Given the history in Pennsylvania, and elsewhere, how effective would enforcement likely be in New York? For starters, the state Department of Environmental Conservation (DEC) is structured to serve both the public commons and industry. Repeated instances of conflict of interest in state government surfaced in 2012.
A few examples: There are concerns about the impartiality of Lawrence Schwartz, secretary to Governor Cuomo who “has a history of investing in oil and natural gas companies,” according to an investigation by the Environmental Working Group. Also Bradley J. Field, the head of the DEC’s Division of Mineral Resources, and thus the state’s chief regulatory enforcer is a petroleum engineer, drilling proponent—and climate denier. Field asserted that, “The industry is regulated, and the lack of contamination events is evidence that the laws and rules are effectively protecting the environment.”
But writer Tom Wilbur counters that, “When claims of water contamination are reported, the DEC Mineral Resources Division, the lead investigative agency, often leaves it up to the industry to settle with property owners who face a high burden of proof and experienced industry legal teams.”
Assessments, regulations, and enforcement. The Safety Trifecta is not looking that safe. For New York residents, the enforcer will be Brad Field, a climate change denier who believes that fracking is already sufficiently regulated right now. But what about the NY regulations themselves? How are those being devised?
That’s what the Environmental Working Group (EWG) wanted to know. Since March 2012, the EWG has requested public records (available under the Freedom of Information Act) that document how the DEC developed its fracking guidelines. This inquiry initially revealed that “state regulators gave drillers exclusive behind-the-scenes access to draft regulations that were stacked in favor of natural gas companies and riddled with scientific gaps,” said Heather White, EWG’s general counsel and chief of staff. According to the EWG, “In at least one instance, a representative of Oklahoma-based Chesapeake Energy Corp., one of the nation’s most powerful drilling companies, used this inside track to try to weaken rules restricting discharges of radioactive wastewater.”
But the EWG identified major gaps in the information revealed. “The paltry number of records we received from the Cuomo administration is remarkable when you consider the magnitude of New York’s fracking debate,” said Thomas Cluderay, EWG assistant general counsel.
This past Monday, the EWG sued the Cuomo Administration for withholding the complete documentation. “We believe this suit will shed much-needed light on what has been going on behind the scenes,” said Cluderay.
In this context, assurances that fracking can be done safely through regulation should be seen as mass sedatives, not as real protection. Meanwhile, elected officials move on, but state bureaucrats remain. That means that should Cuomo open the gates to fracking, any improprieties committed by the DEC, past, present, or future, will be laid at his doorstep. And that’s why both New York and nationwide fractivists hope that after the pause that refreshes, Cuomo will hit the stop button.
