Hydrofracking

State’s Highest Court Upholds Local Fracking Bans

The state’s highest court upheld bans on hydrofracking imposed by local governments in a 5-2 ruling issued Monday.

The case centered on the rights of two communities — Dryden and Middlefield — to create local zoning restrictions on the controversial natural gas extraction process.

In arguments before the court last month, attorneys for the natural gas industry argued that noting in arguments that communities can’t prohibited entire industries.

“We think that this is really a very, simple, straightforward case that the courts below have really misinterpreted,” said industry attorney Tom West said in oral arguments.

But the ruling found the towns “engaged in a reasonable exercise of their zoning authority.”

At the same time, the court also stressed its ruling wasn’t on the pros and cons of hydrofracking itself, a process that is currently being studied by the state Department of Health for its impacts on human health.

The ruling on Monday by the state Court of Appeals holds up decisions by lower courts in the Dryden and Mayfield cases.

“At the heart of these cases lies the relationship between the State and its local government subdivisions, and their respective exercise of legislative power. These appeals
are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits. These are major policy questions
for the coordinate branches of government to resolve,” the majority opinion found, written by Judge Victoria Graffeo. “The discrete issue before us, and the only one we resolve today, is whether the State Legislature eliminated the home rule capacity of municipalities to pass zoning laws that exclude oil, gas and hydrofracking activities in order to preserve the existing character of their communities. There is no dispute that the State Legislature has this right if it chooses to exercise it.”

A dissenting opinion written by Judge Eugene Pigott and concurred by Judge Robert Smith, found the towns exercised undue regulatory authority that sought to restrict a specific industry.

The opinion found that the towns “purport to regulate the oil, gas and solution mining activities within the respective towns, creating a blanket ban on an entire industry without
specifying the zones where such uses are prohibited.”

130 131opn14 Decision by Nick Reisman

State’s High Court Considers Local Fracking Bans

The state’s highest court on Tuesday heard two cases that could decide whether local governments have the power to block high-volume hydrofracking in their communities.

“I think the judges get the issues,” said Tom West, a prominent Albany attorney for the natural-gas industry. “I think as Judge Lippman said at the end they understand the policy arguments, it’s for them to decide.”

Lawyers in favor of upholding the bans on the local level insisted to the state Court of Appeals that the towns of Dryden and Middlefield are exercising their right to issue zoning laws.

“Both of these towns have long-standing zoning codes that do not permit any industrial activity,” said Debra Goldberg, a lawyer for Earth Justice. “This isn’t aimed at the oil and gas indsutry. What they’ve trying to do is clarify what the rules have been all along.”

The bans have been upheld in the lower courts, both lawyers for the natural gas industry have taken their case to the state’s highest court, noting in arguments that communities can’t prohibited entire industries.

“We think that this is really a very, simple, straightforward case that the courts below have really misinterpreted,” West said in oral arguments.

And they argue that allowing communities to set their own limitations on fracking could present problems.

“Are we going to let 932 towns decide the energy policy of New York state?” said attorney Scott Kurkoski.

The state’s judges appeared skeptical of the arguments from both environmental lawyers as well as attorneys from oil and gas industry.

“What can the municipality do in relation to fracking? Nothing? They have no say in what happens? The elected officials have no say what happens in that municipality? The elected official says there’s nothing they can do?” asked Chief Judge Jonathan Lippman.

Associate Judge Robert Smith zeroed in on whether a state law Dryden and Middlefield attorneys were pointing to expressly dealt with high-volume fracking, a relatively new drilling method.

“Assuming you’re right, the Legislature that passed this law was thinking about conventional drilling?” Smith asked.

On the state level Governor Andrew Cuomo has directed the state to review the health impacts of high-volume hydrofracking. However that review is yet to be released, and no permits have been released for high-volume hydrofracking after the state has missed multiple regulatory deadlines to do so.

Schumer On Democratic Support For Fracking

U.S. Sen. Chuck Schumer on MSNBC’s “Morning Joe” said hydrofracking has the support from Democrats across the country, but demurred when asked about Gov. Andrew Cuomo’s drawn-out decision making when it comes to the controversial natural gas extraction process.

Schumer, challenged by host Joe Scarborough on why Cuomo hasn’t allowed a permitting process to go through on fracking, tried to thread a needle on a rather complicated issue by deferring to Cuomo, but also keeping an eye out for Democrats on the national level.

“Well, I haven’t stepped on the governor’s issue on this one. He’s being very, very careful because there are environmental concerns,” Schumer said. “But overall, the Democrats throughout the country have supported fracking. The president has, most of us have, and it’s worked quite well.”

Schumer was repeatedly asked if he would like high-volume hydrofracking to be allowed in the upstate region, where it’s being eyed in the Southern Tier region where natural gas deposits are especially rich.

Schumer was careful to stick to a tight script, not dissimilar to what Cuomo has said.

“Well, it has to be done carefully and has to be done right,” Schumer said.

He added, “If the governor feels it’s going to be done carefully, I sure would.”

It would not be surprising if Republican opponents of the governor as well as supporters of fracking use this clip in the coming weeks.

Shah’s Fracking Review Expected To Outlive His Tenure

Health Commissioner Nirav Shah decision to leave his post next month comes as his review of the health impacts of high-volume hydrofracking is still ongoing, with no end in sight.

Nevertheless, advocates on both sides of the controversial fracking issue expect the review to outlive Shah’s tenure at the department.

“The commissioner is taking a very thorough, scientific approach. The governor has said he’s going to make his decision based on that science and we certainly expect that work to continue,” said Conor Bambrick of Environmental Advocates of New York.

Shah began the review more than a year and a half ago after the state Department of Environmental Conservation missed multiple deadlines to set a permitting process for hydrofracking, a controversial process used to extract natural gas from below ground.

At the time, Shah said his review would be finished in a a matter of weeks.

Supporters of high-volume fracking say the delay has put New York at a disadvantage compared to other states that allow the process.

“If the state of New York couldn’t figure out that doing hydrofracking in the Marcellus Shale couldn’t be done in a safe way, in an environmentally prudent way, then it’s never going to figure it out,” said Unshackle Upstate executive director Brian Sampson.

At the same time, little light was shone on what exactly Shah would review when it comes to the health impacts of fracking. The lack of transparency bothered both the energy industry as well as environmentalists.

“The commissioner certainly had his approach. We definitely would like to see more public involvement if and when this study is completed. We still haven’t seen the results of his work and we’d like to see what the department is going to produce going forward,” Bambrick said.

The news of Shah’s resignation, due to take effect in May, came as Republican candidate for governor Rob Astorino called on the commissioner to step down in part because of the hydrofracking delay. In an online video, Astorino accused Shah of doing Governor Cuomo’s political bidding.

“The state health commissioner is doing Governor Cuomo’s political bidding in delaying a decision through his election, but isn’t the state health commissioner supposed to be the state’s chief medical officer, not a political foil for Governor Cuomo?” Astorino said.

A state official says Shah’s departure had been in the works for weeks and was unrelated to Astorino’s call that he step down. Shah, too, has insisted he was not taking directions from Cuomo when it came to the hydrofracking health review.

“He’s let me let science lead the way. He has not in any form impacted me and when I said I needed more time, he’s like, ‘okay, have more time,’” Shah said earlier this year.

Martens: No Plans To Issue Fracking Permits This Year

Department of Environmental Conservation Commissioner Joe Martens on Wednesday told lawmakers there are no plans to issue hydrofracking permits this year.

“We have absolutely no plans to do so,” Martens said when asked about whether permits would be issued this year.

Martens is testifying before a joint Assembly-Senate hearing on the state budget’s environmental spending.

Martens added there is no proposed spending in Gov. Andrew Cuomo’s budget to regulate and permit high-volume hydrofracking.

The state has missed multiple deadlines to develop regulations for potential development of natural gas through the controversial natural-gas extraction process.

The state Department of Health more than a year ago began an impact study on the effects hydrofracking has on human health, but that process is yet to be completed.

Common Cause: Pro-Fracking Interests Spending Big

Despite a de facto ban on the controversial natural gas extraction process, pro-hydrofracking interests have contributed $15.4 million to political campaigns in the last seven years and spent nearly $48.9 million on lobbying state officials.

At the same time, those opposed to hydrofracking have spent far less: $1.9 million on campaign contributions and lobbying has totaled $5.4 million.

The good-government group Common Cause on Monday released a 68-page analysis of money spent trying to influence state officials on the issue.

Supporters of high-volume fracking argue that allowing the process would create jobs in the economically troubled Southern Tier region of the state, while a swelling environmental movement has raised concerns over its impact on water and land.

The money spent on the issue shows it’s time to enact some form of campaign finance and lobbying reform, the group says.

“Hydraulic fracturing has been one of the most polarizing issues in recent history, with no shortage of political money invested by pro-fracking interests to achieve a favorable outcome,” Susan Lerner, the group’s executive director. “The persistent and accelerated spending is cause for concern as lawmakers weigh this key decision. Yet despite being outspent by nearly 9 to 1, organized people have managed to overcome the advantage of organized money to make their voices heard. Nevertheless New York State needs comprehensive campaign finance and lobbying reform to assure New Yorkers that public policy is based on their interest, not the special interests.”

Gov. Andrew Cuomo has received the most of the statewide officials from pro-fracking entities, $994,150.

Senate Republicans, whose conference generally backs allowing permitting for fracking, has received $3.1 million.

In the Assembly, where Democrats have passed multiple bans on hydrofracking over the years, pro-fracking groups have given $1.3 million.

Sen. Tom Libous, a Binghamton Republican and vocal supporter of hydrofracking, has received the most of any state legislator, $368,305, since 2007.

The state has missed multiple regulator deadlines to regulate and permit hydrofracking in New York, a process that is now part of a bankruptcy suit in state court.

Cuomo has said he wants the science to guide the process. The Department of Health is studying the health impacts of hydrofracking, a process that has been underway for more than year.

Deep Drilling Deep Pockets 2014–Final Version by Nick Reisman

Shah: Transparency On Hydrofracking ‘At The End’

The process of making a determination on whether the state will deem high-volume hydrofracking safe will remain behind the scenes, Department of Health Commission Nirav Shah said at a cabinet meeting on Monday, insisting the science behind the study will be done in a “sacred place.”

“The process needs to be transparent at the end, not during,” Shah said during a series of questions from Gannett’s Jon Campbell.

Shah said the details of the safety study will be revealed “when I’m done.”

The state Department of Health began reviewing the controversial natural gas extraction method in September 2012, but no determination on hydrofracking’s safety has been made, and the review has largely remained out of the public view.

Shah reiterated on Monday the science will guide the decision, adding that he’s received new information from other states in November.

“For the last few months, I’ve said that as the science evolves, we will reflect the science in my recommendations,” Shah said. “As recently as a month ago, we got new data from Texas and Wyoming and until I’m comfortable with the state of the science, I’m withholding my recommendation.”

The state has missed several self-imposed regulatory deadlines to make a determination on hydrofracking, either through creating a regulatory process for permitting or an environmental impact statement.

Gov. Andrew Cuomo, who has been criticized by the natural gas industry for the lack of speed on making a decision, backed Shah’s continued research at the cabinet meeting.

He also said it was “apples and oranges” to compare the state’s relative speed on, say, the construction of the replacement of the Tappan Zee Bridge versus the decision on hydrofracking.

“I want the right decision, not necessarily the fastest decision,” Cuomo said. “When it’s appropriate to move fast, we can move fast. I think we’ve shown that over and over again.”

The issue of sunlight on the hydrofracking process is one of the few areas of agreement between the natural gas lobby and the environmental advocates who oppose the method.

In Letter, Norse Trustees Make Final SGEIS Demand

Trustees for Norse Energy are making a last-ditch effort to force state environmental officials to declare a final end to the hydorfracking review process or be sued in state court.

Norse Energy announced in October it was filing for bankruptcy and shuttering its U.S. operations.

Late last month, trustees for the company announced through a court filing they were preparing to sue Gov. Andrew Cuomo, along with his top health and environmental commissioners, in order to release the supplemental generic environmental impact statement, a document known as the SGEIS, detailing the risks of high-volume hydrofracking.

The letter, sent Monday to state Department of Environmental Conservation Commission Joe Martens by Albany attorney Tom West, asks the state to provide a timetable within two weeks of when the SGEIS will be released or a legal challenge will be filed in the “very near future.”

Norse had filed 27 applications for permits to use the high-volume fracking technique in the Marcellus Shale.

The letter says that because of the fate of those permits was put on hold as the state missed multiple deadlines to finish the regulatory process, the company was forced to declare bankruptcy. Because the company needs to value to its outstanding debts and assets during the liquidation process, it’s pushing for a final conclusion to the SGEIS process.

Hydrofracking for natural gas is seen by the energy industry a potential boon for the upstate economy, especially in the state’s Southern Tier.

In opposition is an organized environmental movement that has been particularly effective in staving off fracking permitting in New York.

The state Department of Health began a review of the health impacts of hydrofracking earlier this year, a process that has not been completed.

Cuomo has said he would make a decision on whether to permit high-volume hydrofracking before next year’s election in November.

20131202 Final Martens Demand Letter by Nick Reisman

Report Casts Doubt On Fracking Jobs

A report released Thursday by a labor-backed group casts a skeptical eye at the number of jobs that would be created by high-volume hydrofracking in the states that include the Marcellus Shale.

The report by produced by several groups, including the labor-backed Fiscal Policy Institute, as well as the Parks Foundation, which has contributed to anti-fracking groups.

The study contends the number of jobs that will be created by granting fracking permits is far lower than the energy industry contends: Only four new jobs between the years of 2005 and 2012 for each new well in the Marcellus shale.

Statistically, roughly one in 795 jobs can be traced by to gas development in the Marcellus shale region, which includes six states.

New York has missed multiple regulatory deadlines for setting regulations for high-volume fracking and is operating under a defacto moratorium.

The state Business Council, a lobby group, said in a statement pushed back on the reports findings.

“Nothing has transformed the rural economies of Marcellus Shale states like natural gas drilling,” said Darren Suarez, director of government affairs. “Viewing job creation data on a statewide basis ignores the localized job creation benefit that drilling provides. The Public Policy Institute of New York State compared five Marcellus Shale counties in Pennsylvania with five Marcellus Shale counties in New York between 2009 and 2010 and found private sector employment grew. In the five-county Pennsylvania region encompassing McKean, Potter, Susquehanna, Bradford and Tioga, private sector employment grew by 4.7 percent, or 2,425 jobs, while average private sector employment in the five-county New York region Allegany, Steuben, Chemung, Tioga and Broome fell by -0.3 percent, a loss of 389 jobs.”

186088188-MSSRC-Employment-Impact-11-21-2013 by Nick Reisman

Lance Bass To Cuomo: Don’t Frack

Erstwhile N*Sync band member Lance Bass is urging Gov. Andrew Cuomo to make hydrofracking illegal in New York.

In a video posted on YouTube today by the group Americans Against Fracking, Bass asks, “What the frack, Governor Cuomo? Fracking makes climate change worse. So please, make hydrofracking illegal today.”

The video comes as Cuomo heads to Buffalo for a fundraiser that is expected to draw protestors for and against hydrofracking.

The state Department of Health is still undertaking a review of whether hydrofracking is hazardous to human health, and no permits for high-volume hydrofracking have been granted in New York.

The state has missed multiple deadlines to put in place regulations for fracking, should permits be granted.