Science Trumped by Politics In Cuomo's NY Fracking Plans?

Brendan DeMelle DeSmog
on

New York Governor Andrew Cuomo has said repeatedly that, in making the decision on whether to allow horizontal hydrofracking in New York State, he wants to rely on โ€œscience, and not emotion.โ€ He is relying on the NY Department of Environmental Conservation (DEC) to give him that science – but an array of documents suggest the Governor is being badlyย served.

Documents recently uncovered by Environmental Working Group shine a unique spotlight on privileged access granted to gas industry lobbyists by DEC officials with regards toย fracking.

Some of the most important conversations revealed in those pages have little to do with debate over the science of frackingโ€™s environmental footprint โ€“ and everything to do with the politics of ending New Yorkโ€™s temporary moratorium and allowing shale gas fracking to move forward in theย state.

Governor Andrew Cuomo has gone to great lengths to present the course his state will take with regards to fracking as the opposite of Pennsylvaniaโ€™s drill-baby-drill approach, which has left regulators scrambling to keep up and allowed a growing list of problems to emerge. By contrast, New York will make an incremental, guarded entry into fracking, Cuomo alleges. And his regulators will take an approach that rises above the fray of conflicts between industry andย environmentalists.

โ€œWe have a process. Letโ€™s get the facts,โ€ Governorย Cuomo said last year, with regards to ending the stateโ€™s temporary moratorium on fracking. โ€œLet the science and the facts make the determination, not emotion and notย politics.โ€

But itโ€™s increasingly clear that the process has actually been based on anything but science. Politics, legal considerations and economic concerns have instead predominated. Most tellingly, documents recently uncovered by Environmental Working Group show that industry representatives allowed access to drafts of the stateโ€™s permit plans, and used that information to lobby hard against testing for radioactivity in wastewater, forย example.

But the documents also show a regular pattern of behind-the-scenes communication between the industry and regulators, at the same time as environmental advocates and others were struggling to be heard through public comments and similar officialย channels.

The flow of email traffic is steady, the documents show, and there are references to conversations happening on the side. โ€œLetโ€™s talk in the morning,โ€ writes a DEC official to an industry lobbyist, indicating that phone calls and other contacts took place beneath the publicย radar.

We donโ€™t know what happened during those conversations of course. โ€œWe were very careful what we put in emails,โ€ the industry lawyer and lobbyist, Tom West, admitted on a July 5 appearance on Capitolย Tonight.

Nonetheless, in those emails, extensive lobbying takes place, and industry is provided an early look at the plans the DEC is developing weeks before the public comment periodย began.

DEC officials have defended their decision to provide the industry with these drafts of regulations, saying that state law required them to calculate the costs of complying withย rules.

โ€œDEC could not possibly fully understand the potential costs of regulations without seeking input from the affected regulated entities,โ€ wrote Emily Desantis, Director of Public Information at the Department of Environmental Conservation in a July 4 letter to the editor of the Albany Times Union. โ€œTo imply there was anything untoward in DEC‘s actions is irresponsible andย uninformed.โ€

But the documents show that the private discussions often centered on topics that had little or nothing to do withย costs.

The topic of home rule, or local regulation of drilling under zoning laws, which Governor Cuomo hinted this week that he supports, comes up again and again. The documents show representatives of Chesapeake Energy, one of the most aggressive drilling companies, lobbyingย hard.

Some background: In early July 2011, DEC Commissioner Joe Martens seemed to indicate that his departmentโ€™s permitting process would take local bans and zoning rules into account. โ€œIf we can’t decide on our own, then it may become an issue just between the applicant and the local government,โ€ Martens told the Star Gazette. โ€œIt may be that the courts will have to decide if something is consistent or not consistent (with localย ordinances).โ€

These comments seem to have drawn a strong objection from Tom West, attorney for Chesapeake Energy, a July 7, 2011 email shows. West wrote to Steve Russo, general council for the DEC, that โ€œsome of the comments being made to the Commissioner โ€ฆ overstate both the law and the discussion of the local preemption issues in the draftย document.โ€

In another e-mail [PDF], West again objects to the way the department might handle zoning questions, arguing that Martens has no right to decide zoning issues, and for a commissioner to do so would be to โ€œarrogate unauthorized power toย himselfโ€.

The legalese is dense, but these issues are of great importance. In New York state there now are more than a hundred municipalities that have set in place bans and moratoria to prohibit fracking in their communities. The DECโ€™s approach to permitting could decide who will have the upper hand in enforcing those bans โ€“ crucial questions for small towns and counties with limited budgets to fight lengthy courtย battles.

Another exchange suggests that the DEC has already taken steps at industryย urging.

In a July 25, 2011 letter from Dennis Holbrook, Executive Vice President of Norse Energy to Commissioner Martens, Holbrook writes that the DEC‘s initial advisory panel โ€œcan only be strengthened by including additional, relevant viewpoints.ย  Specifically, the panel is light in terms of industryย representativesโ€ฆโ€

In a September 29, 2011 letter, Commissioner Martens responds to Dennis Holbrook. โ€œI am pleased to inform you that five new members were added representing local governments, the agricultural community, landowners, and the natural gas industry,โ€ he writes. โ€œI believe these additions will make for a complete panel for this importantย review.โ€ย 

When the DEC began the process of determining how fracking would be regulated, residents were told that New York State would conduct a study that would be built on a solid scientificย basis.

But after early drafts showed a lack of attention to key issues, an unprecedented flood of public comments, many from prominent scientists and experts, has raised serious concerns about the adequacy of Cuomo’s approach. Major flaws in the stateโ€™s draft plan have been pointed out again andย again.

For example, in a June 13 letter, seventy New York state legislators on both sides of the aisle pointed out six major issues they said were under-addressed, including the impacts that fracking could have on homeownerโ€™s insurance and on mortgages, industry exemptions from hazardous waste handling rules, and the practice of disposing of wastewater by spraying it onย roads.

Instead of focusing on issues like these, DEC staff were busy discussing zoning questions with industry lawyers and providing drillers with a chance to weigh in on the expense of complying with environmentalย protections.

It’s time for Governor Cuomo to send the DEC back to the drawing board, and this time, they should pay closer attention to science and the public interest than they have clearly paid to gas drillers and theirย lobbyists.

Brendan DeMelle DeSmog
Brendan is Executive Director of DeSmog. He is also a freelance writer and researcher specializing in media, politics, climate change and energy. His work has appeared in Vanity Fair, The Huffington Post, Grist, The Washington Times and other outlets.

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