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Albany Rally photos/de facto moratorium/ban questions


Many thanks for the generous comments that dozens of activists provided about Thursday's Albany Rally. Your sentiments are appreciated.

I neglected to provide a link to photos of the event. In the first photo, DEC Commissioner Martens is the tall fellow with the red tie. If you spot him, buttonhole him. See:

I was forwarded a pro fracking ban communication that stated DEC is "moving forward to start fracking this summer/fall..." That is totally misleading. I write to set the record straight.

Executive Order No. 41 provides: "On or about June 1, 2011, the Department shall publish a Revised Draft SGEIS (emphasis added), accept pubic (sic) comment on the revisions for a period of not less than thirty days, and may schedule public hearings on such revisions to be conducted in the Marcellus shale region and New York City;"

The de facto moratorium continues until a Final SGEIS is adopted. Under any scenario, that should not occur for quite a while.

Even if we are unable to expand the scope of the SGEIS proceeding, DEC is likely to publish a Revised Draft SGEIS sometime during the summer, probably later rather than sooner given staffing constraints. Commissioner Martens said as much when we met with him.

The original draft SGEIS had a 90-day comment period. Groups, such as Manhattan Community Board One, are pushing for a 120-day comment period.

That means the comment period for the Revised Draft SGEIS could end toward the end of this year.

DEC received more than 10,000 comments on the original draft SGEIS. Reviewing those comments is still on-going after 15 months. If we deluge DEC with thousands of comments on the Revised Draft SGEIS, it might take another year to review the comments. That could bring us to the end of 2012. That would be a three-year extension of DEC's schedule for finishing up comment on its original draft SGEIS.

If we succeed in expanding the scope of the SGEIS proceeding, a Final SGEIS might take many years to complete. That would afford us time to make sure environmental and public health safeguards required by the SGEIS are comprehensive. That is what I am working on. As far as I am concerned, the longer the delay, the better.

A number of people asked me about a statewide fracking ban and local ordinances to prevent horizontal hydrofracturing. I am not working on those strategies because I do not believe they make sense.

First, a statewide fracking "ban" would likely be unconstitutional and could trip the wire on "illegal takings" that could incur huge taxpayer expense. Second, there is virtually no chance statewide fracking ban legislation would be enacted in New York now that the State Senate is back under pro-drilling Republican control. (In fact, no anti-gas drilling legislation of any kind likely has a prayer of being enacted for the same reason.) See below a memo that I and a pro-ban advocate recently received. I received permission to distribute the email so long as I did not identify the author.

I am similarly not working on local ordinances designed to bar horizontal hydrofracturing. Those ordinances will surely be litigated if they threaten to hold up significant shale gas extraction efforts. The gas industry has said so. First, this is an unsettled area of law. Second, environmental litigation can take years and incur staggering expense. Toxics Targeting has provided data services to some of the biggest environmental litigation efforts in the nation. That is why I have low confidence in the outcome of environmental litigation, no matter how rosy the predictions when the attorney retainers are signed.

A local ordinance was recently passed in Buffalo, but it was a symbolic gesture at best. Only 16% of that City lies above Marcellus Shale. Not a single horizontal hydrofracking permit has been applied for in Buffalo.

For all these reasons, I remain intent on extending the de facto moratorium as long as practicable. That strategy has worked extremely well so far to safeguard New York from Marcellus Shale extraction hazards.

Governor Cuomo is the target of my efforts. I urge you to push him to expand the scope of the SGEIS. See below. Lean hard, but be respectful.



Hi A____,

This is the first time I've given my opinion in response to the list-serve, but I feel that I need to respond to your commentary pushing for an outright ban.I do NOT want this e-mail distributed.

Having worked for 2 state legislatures as a legislative attorney, I am 99.9% certain a ban would never fly, regardless of whether it is the right thing to do. It is inconceivable that the legislature would ever have the political will to call for such a drastic measure; a call to an old co-worker in the CT legislature confirmed my concerns that there is a fairly strong commerce clause issue that would render a ban unconstitutional (emphasis added), and yes, as much as I abhor property owners arguing there will be a takings if they are not allowed $$ from gas drilling, the gas companies themselves have a strong takings argument if gas drilling is banned outright (emphasis added).

Having seen lobbyists at work as well as how legislators react to lobbyists, any push for a measure that they (legislators) view as extreme and untenable is immediately disregarded and that lobbyists is often dismissed as being too far on the fringe.

Anyway I thought I'd be remiss if I didn't share with you my own personal experience working with state legislatures and legislators, as I think it adds a different perspective. PLEASE do not forward this to anyone - it contains a legal opinion that concedes my opinion that a ban is legally unconstitutional - not something I want shared with the public nor with gas drilling advocates.


Call and email Governor Andrew Cuomo, EPA Regional Administrator Judith Enck, DEC Commissioner Joseph Martens and New York City Mayor Michael Bloomberg. Ask them to support:

  1. Expanding the scope of the draft SGEIS to include additional concerns, notably how to manage gas drilling wastewater;
  2. Establishing Citizens and Technical Advisory Committees to help DEC revise the draft SGEIS;
  3. Providing at least 30 days public comment to identify additional issues to be included in the draft SGEIS scope;
  4. Requiring individual EIS reviews for horizontal hydrofracturing permits, "GA effluent limitations" for hydrofracturing, deep well injection and wastewater treatment as well as updating DEC's 1992 GEIS.

Please bcc:

You can read Ian Urbina's three front-page stories in The New York Times and check out the accompanying graphics/document applications at:

I posted a compilation of key horizontal hydrofracturing documents at:

You can hear me discussing those documents on Democracy Now at:

You can hear a podcast about the documents at: