Joe Massaro and Rachael Colley
Field Directors

The New York DEC is once again receiving public comments in the process of completing its SGEIS process on high volume hydraulic fracturing, this time on the proposed regulations themselves, which will generally govern natural gas development in the state.  The DEC missed a November 29 deadline to make a decision, forcing the opening up of the new comment period but this time the comments are coming in at a somewhat slower pace than we saw in 2011 on the SGEIS itself.  The comments aren’t particularly good either.

We’ve entered another year, and with it are halfway through another New York Department of Environmental Conservation  (DEC) comment period related to regulations governing natural gas development being pursued in conjunction with the draft Supplemental Generic Environmental Impact Statement (SGEIS).  The SGEIS is an assessment of the environmental impact of the proposed new regulations on hydraulic fracturing and this time the comments are being solicited on the regulations themselves. These regulations will govern the most important aspects of shale gas development in the Empire State. There is a sense of Deja Vu given DEC missed an important November 29 deadline, and thus had to hold another comment period. This one will last 30 days.

Comments have been rolling in since the comment period began on December 12, but not nearly at the pace last time around when tens of thousands of comments were submitted (recognizing the majority were form letters). So far the DEC has only received just over 800 comments  according to NGI’s Shale Daily:

DEC spokeswoman Lisa King told NGI’s Shale Daily on Monday that the agency has so far received 837 comments. Of those, 447 were submitted by mail and 390 were received online. But that total is well short of the record 20,800 responses the agency received during the last public comment period for HVHF, which began in September 2011 and ended in January 2012 (see Shale Daily, Jan. 12, 2012; Sept. 29, 2011).

The current 30-day public comment period began Dec. 12 and is scheduled to conclude at 5 p.m. EST on Jan. 11 (see Shale Daily, Dec. 12, 2012). It started shortly after the DEC released 90 pages of documents outlining its proposals, which include a ban on drilling with HVHF within the New York City and Syracuse watersheds, an adjacent 4,000-foot buffer zone, and within 500 feet of private drinking water wells (see Shale Daily, Dec. 3, 2012).

The article also describes actions by some elected officials to increase the time period for the comment period to a total of 90 days (emphasis added):

Meanwhile, 37 elected officials added their signatures to a letter written by an anti-fracking group to Gov. Andrew Cuomo, urging him to unilaterally extend the public comment period at least another 60 days, for a total of at least 90 days.

In a Dec. 21 letter to Cuomo, the group Elected Officials to Protect New York (EOPNY) argued that a 30-day public comment period was insufficient.

‘While these revised rules are designed in part to protect local governments from the impacts of fracking…most local governments will be unable to respond at all to these critical regulations,’ EOPNY said. ‘Many municipalities do not even meet between now and Jan. 11. Such a short comment period, especially during a period of major religious and national holidays, is inadequate for any reasonable public review of such extensive regulations.’

Last month, three key lawmakers — New York State Assemblymen Richard Gottfried (D-Manhattan), Robert Sweeney (D-Lindenhurst) and Charles Lavine (D-Glen Cove) — made a similar appeal to DEC Commissioner Joseph Martens, but they asked for the public comment period to be extended to 60 days total. The three had not signed the most recent EOPNY letter.

A series of delays in the environmental review has kept a moratorium on HVHF in place since 2008 (see Daily GPI, July 28, 2008).

Sure, to people against natural gas, 37 elected officials signing on sounds great but when you examine the numbers of governments in New York the number of signatures quickly becomes very small.. There are 932 towns, 62 cities, and 62 counties (plus the 5 counties/boroughs in New York City, totaling 67) in New York State. A grand total of 37 isn’t nearly so statistically impressive when put into perspective.

What’s more is the notion that 30 days is not an ample time period to make comments. Not only did the DEC release a shortened 90 page version of the SGEIS, but the document in its entirety has been available for well over a year. Comments made today will not have substantially changed from 2011. It is merely a tactic to continue to delay the approval of permits for natural gas development in New York. As the article notes, New York has been working on this effort since 2008. The state is entering its 5th year of a moratorium and there have been more than enough delays.

Let’s take a moment to look at the comments that have come in, and a few we can expect to be submitted on January 11.

Barth Continues to Miss Economic Impacts in PA/Potential Impacts in NY

Dr. Janette Barth refers to herself as an “independent economist”, however in doing so she fails to mention her association with the group Catskill Citizens for Safe Energy.  Barth is not an independent economist, she is an advocate against the development of natural gas.  It’s not that she is against these regulations, she is against the entire natural gas development process and someone that would only be happy if it were never brought into New York.  This is easily noticed in the comments she provided on December 28, 2012:

For example, Freudenberg and Wilson [1] studied non-­‐metropolitan regions and concluded, the areas of the United States having the highest levels of long-­‐term poverty tend to be found in the very places that were once the site of thriving extractive industries.

Comments like these beg DEC not to consider them as they are extremely broad.  Barth continues showing her bias in previous comments:

“This ignores much research that has been submitted in the past to the DEC, including research by Headwaters Economics [2] that shows that “counties that were not focused on fossil fuel extraction as an economic development strategy experienced higher growth rates, more diverse economies, better educated populations, a smaller gap between high and low income households and more retirement and investment income.”

With Barth’s extensive work as an advocate against the development of shale gas she has cited work done by other Headwaters Economics who themselves are a firm that has undertaken notable actions against fossil fuels.  Much like Barth, this firm proclaims to be independent but when we examine its funders we notice two organizations. One is the Bullitt Foundation, which has given Headwaters Economics $25,000 while also giving extensively to anti- natural gas groups such as American Rivers, EarthJustice and Earthworks, along with the Tides Foundation.  The other is the  V. Kann Rasmussen Foundation, which also funds Tides and groups such as 350.0rg, headed by Bill McKibben, a noted anti-gas activist who has teamed with Josh Fox to fight natural gas development.  Barth constantly pulls “facts” and studies from organizations bent on keeping this process out of New York and they wish, everywhere else.

Barth is an activist first and a concerned New Yorker second.  With the economic situation of New York’s Southern Tier worsening by the day, getting sound regulations that both sides of this argument can agree on should be a priority.  Barth has taken the stance of someone who will never be happy unless it just doesn’t happen at all.

Last Day Submissions Still to Come

Barth isn’t the only one planning to submit comments. The past few weeks natural gas activists have been signing 13 pre-written letters to, once again, flood the DEC with comments on the dSGEIS and  make it appear their view is the majority.  We know this is not the case in New York for several reasons, one being election results this past November where those in favor of development were elected, or re-elected, by a landslide in areas where it might actually occur. The people against natural gas development can play with the numbers as much as they want, it still doesn’t change statistics and facts. There are over 19 million people in New York, and many of them want to see natural gas development in the state.  This much is noticeable in poll after poll which continue to show pluralities supporting natural gas development in New York.

Nonetheless, while the comment period rolls on, the DEC can expect to receive the same 13 letters for a few hundred people courtesy of the Catskill Mountainkeeper  and its friends.  According to one post on Gasland’s Facebook, they plan to:

“bury Albany in a blizzard of paper on January 11th”

So much for saving the environment one tree at a time.

The group is asking everyone to sign all 13 letters and submit them in one giant package. But you can’t read through letters 2-13 until you sign and submit letter number one, so even if a person doesn’t agree with one letter and wants to submit the form for another point, they can’t. Guess that’s one way of guaranteeing you get each person to sign each letter.

That being said, we can only look at the first letter, as we’re not going to sign the form just to see the rest. Here’s what’s being submitted:

Draft HVHF Regulations Comments

RE:CONFLICT OF INTEREST  (SECTIONS 550.1 AND 550.2)

These sections give the Division of Mineral Resources and its director responsibility for administering and enforcing all rules and regulations relevant to all phases of oil and gas extraction.  Giving the division the job of preventing damage and pollution from the very activity it promotes means that, for all intents and purposes, New York State will not have autonomous regulatory oversight over gas drilling. This regulatory structure is rare in the U.S., and for good reason. New York State should, like most states, have separate agencies to handle well permitting and regulation of the oil and gas industry. Failing to separate these functions undermines the DEC’s effectiveness and credibility as an environmental protection agency and raises serious questions about its actual mission.

Giving one division of the department as a whole the oversight to regulate the natural gas industry in no way takes away from its credibility. The Department of Environmental Conservation and the Division of Mineral Resources are experts in the topic with a long history of regulating and have the resources to hire the people who are equipped to answer the scientific questions. From their website:

The Division of Mineral Resources is responsible for ensuring the environmentally sound, economic development of New York’s non-renewable energy and mineral resources for the benefit of current and future generations. To carry out this mission, we regulate the extraction of oil and gas, and require the reclamation of land after mining.

More than 70,000 wells have been drilled in New York for oil, gas and solution salt extraction, geothermal, brine disposal and underground gas storage. Computerized records exist on more than 34,000 wells, of which about 14,000 are active. The division also has files on roughly 4,800 mines permitted since 1975, of which approximately 2,500 are active.

What a waste of paper to say the division that has been overseeing gas development isn’t equipped to continue to do so. It’s just another delay tactic to wait until the very last day and flood the department with comments, form letters really, in the hopes of further putting off  natural gas development. But natural gas development will continue in New York, as it has since the 1800s, regulated by the department and division with a proven record of protecting the state’s environment. The time for bending to these tactics is over, just as the comment period almost is. It’s a new year and it’s time to make a decision.

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