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What DOH and DEC Did This Week/Our General Plan of Action/More to Come Shortly


I write simply to try to explain the extremely important consequences of the decision by DOH Commissioner Nirav Shah and DEC Commissioner Joe Martens not to adopt a Final Supplemental Generic Environmental Impact Statement (SGEIS) by yesterday's deadline.

As a result, Governor Cuomo confirmed that DEC's shale gas Revised Rulemaking proceeding would not meet its drop-dead deadline of 2/27/13. The Governor also noted that "...he wouldn’t rush Shah to meet an 'arbitrary' deadline."


Please note that when Assemblywoman Barbara Lifton released her 65 Legislators sign-on letter requesting formal public participation for the DOH Review, she specifically said: "...I believe there should be no arbitrary deadline for completing this [DOH] Review."


Not Out of the Woods Yet

By working together to implement a highly sophisticated advocacy and organizing plan, we have achieved stunning progress to safeguard New York from fracking hazards in the face of a massive gas industry lobbying onslaught.

But we are not out of the woods by any means. We have simply survived to fight another day.

I write because many activists were confused about Commissioner Martens' statement that shale gas fracking permits could be issued if the DOH Review is completed and a Final SGEIS is adopted even if the Revised Rulemaking proceeding expires without being finalized. I will try to walk you through this public policy thicket.

I also will follow up very shortly to outline how we will endeavor to take full advantage of this week's incredible developments. There is no time to waste.

Three Critically Important Shale Gas Proceedings

Three critically important proceedings have been underway that could decide the fate of Marcellus Shale gas fracking in New York:

a) A DOH Review of the "health impact analysis" conducted by DEC,

b) the DEC SGEIS permit guideline proceeding that began in 2008 and

c) the DEC Revised Rulemaking proceeding that began in 2011.

The first two proceedings have no deadlines for completion.

The Revised Rulemaking proceeding has a drop-dead deadline of 2/27/13. It is intended to translate a Final SGEIS into regulatory requirements. In order to meet the 2/27/13 deadline a Final SGEIS had to be adopted by 2/13/13 in order to fulfill public notice and public comment period mandates.

A Final SGEIS cannot be adopted until the DOH Review is completed. Dr. Shah's 2/12/13 letter reveals that the DOH Review has not yet been completed. As a result, a Final SGEIS was not adopted by the requisite 2/13/13 deadline.

That is why DEC's Revised Rulemaking proceeding is now reportedly dead.

Dr. Shah's Letter

Health Commissioner Dr. Shah wrote to DEC Commissioner Martens that "the DOH Public Health Review will require additional time to complete based on the complexity of the issues." He added, "I anticipate delivering the completed Public Health Review to you within a few weeks, along with my recommendations."


Commissioner Martens' Statement

Commissioner Martens issued a written statement that said:

"...I will not issue a final SGEIS until that [DOH] review is complete and I have received Dr. Shah’s recommendations.

Commissioner Martens added: "The previously proposed high-volume hydraulic fracturing regulations (emphasis added) cannot be finalized until the SGEIS is complete. However, this does not mean that the issuance of permits for high-volume hydraulic fracturing would be delayed. If the DOH Public Health Review finds that the SGEIS has adequately addressed health concerns, and I adopt the SGEIS on that basis, DEC can accept and process high-volume hydraulic fracturing permit applications 10 days after issuance of the SGEIS."


What This Means

Commissioner Martens states that no Final SGEIS has been adopted because the DOH Review has not been completed.

Commissioner Martens also states that shale gas extraction permits can be granted if the DOH Review is completed and a Final SGEIS is adopted even if the Revised Rulemaking proceeding expires without being completed.

DEC has authorized more than 10,000 gas/oil wells since adopting a Generic Environmental Impact Statement (GEIS) in 1992.

The Commissioner is asserting that a Final Supplemental GEIS would similarly provide sufficient authority for DEC to permit shale gas extraction in New York.

Some environmental attorneys reportedly believe that a Final SGEIS must be codified by a rulemaking proceeding before permitting can begin, but their legal theories have not yet been confirmed through judicial proceedings.

What We Must Do

Against that background, our goal is to require 1) public notice about the proposed scope of the DOH Review and how it is being undertaken, 2) a 30-day minimum period of public review and comment, and 3) at least one public hearing to allow interested parties to testify before Dr. Shah and the three outside experts about HOW THE DOH REVIEW SHOULD BE UNDERTAKEN.

We must do our utmost to make sure that a DOH Review conducted totally in secret with zero public input is NOT completed in a "few weeks." Dr. Shah's bogus DOH Review must be immediately put on-hold pending fulfillment of the formal public participation requirements requested by more than 3,000 signatories to the three key DOH Review coalition letters.

Until the DOH Review is completed, no Final SGEIS can be adopted. Until a Final SGEIS is adopted, no shale gas extraction can be permitted in New York.

I will be back in touch very shortly.

Thank you, again, so much for all your assistance.

Very best regards,