Keep Pushing for DOH Review Public Participation/Explanation of Recent Confusing Events/Moratorium Bills Not Likely to be Enacted

Too busy to read yet another ridiculously detailed missive?  Refer to this Quick Action Guide: http://www.toxicstargeting.com/MarcellusShale/alerts/2013/03/07/quick-ac...

Greetings,

Thank you for all your inquiries. Too many shale gas fracking events to count are underway.

I write to try to clear up confusion about Governor Cuomo's current fracking posture, the impending DOH Review, DEC's dead Revised Rulemaking proceeding and two new fracking moratorium bills that have little chance of being enacted into law.

I also will outline why DOH should conduct its own comprehensive shale gas fracking Public Health Impact Study.  This is surprisingly consistent with DEC Commissioner Martens’ original announcement of the DOH Review. 

1. First and foremost, we must make every effort to prevent completion of a bogus DOH Public Health Impact Review conducted in secret without any public input.

New York's nearly five year long shale gas moratorium remains in effect until a Final SGEIS is adopted.  No Final SGEIS can be adopted until the DOH Review is completed.

Dr. Shah's 2/12/13 letter stated:  "I anticipate delivering the completed Public Health Review to you [Martens] within a few weeks, along with my recommendations (emphasis added)." 
 
On 2/27/13, Joe Martens was quoted on public radio: "I expect to hear back from Dr. Shah sometime shortly, in the future," said Martens, who says he has "no plan of action" until he receives the Health Commissioner's report (emphasis added).  See: http://www.wskg.org/wskg_news/cuomo-faces-hard-decision-fracking

The DOH Review could be finished any day. Take Urgent Action to prevent that from happening: http://www.toxicstargeting.com/MarcellusShale/alerts/2013/03/07/quick-ac...

2.  It is critical to understand that Governor Cuomo did not voluntarily halt his shale gas Revised Rulemaking proceeding.  It is dead, but it could be revived any time. He is still pushing hard to permit shale gas fracking in NYS. We are holding him up, however tenuously, for now.

An AP piece last Saturday reported that: "New York Gov. Andrew Cuomo came as close as he ever has to approving fracking last month, laying out a limited drilling plan for as many as 40 gas wells before changing course to await the findings of a new study after discussions with environmentalist and former brother-in-law Robert F. Kennedy Jr., several people familiar with his thinking told The Associated Press."

A second AP piece that ran Monday reported: 

"ALBANY, N.Y. (AP) Gov. Andrew Cuomo denies he was close to approving limited hydrofracking for natural gas last month before talking with environmental lawyer Robert F. Kennedy Jr (emphasis added).”

See: http://www.toxicstargeting.com/news/2013-03-02/ny-fracking-held-cuomo-rf... and http://www.toxicstargeting.com/news/2013-03-05/tuesdays-news-briefs-asso...

The Governor and/or his colleagues reportedly reached out to RFK, Jr. and an attorney at NRDC to gain support for permitting a measly total of ten shale gas wells in the Southern Tier over a two-year period.  The enviros reportedly did not support his demonstration project proposal.

Last year, NRDC’s Revised Draft SGEIS comments outlined a “demonstration project” alternative that would have permitted up to 300 gas wells in three years. The group received a barrage of emails and calls decrying that concept.

See: http://toxicstargeting.com/sites/default/files/pdfs/ene_12011201a-p8-9.pdf

In short, Governor Cuomo clearly tried very hard to go forward with a fracking demo project, but evidently could not enlist enviros to counterbalance intense grassroots opposition to fracking.  That fight is far from over. He will not give up.

3.  Two Fracking Moratorium Bills That Are Unlikely to be Enacted Into Law

Two entirely different fracking moratorium bills have been introduced in the New York State Legislature.  Neither is likely to be enacted into law.  

In order to become law, the exact same bill must be passed in both Houses of the Legislature and signed by the Governor.

An Assembly two-year moratorium bill just passed, but there is no companion bill in the State Senate.  See: http://assembly.state.ny.us/leg/?default_fld=&bn=A05424&term=2013&Text=Y

A State Senate two-year moratorium bill has been introduced by a member of the Independent Democratic Conference (IDC). It has not passed and there is no companion bill in the Assembly.  See:  http://open.nysenate.gov/legislation/bill/S4046-2013

In addition, the State Senate's two-year moratorium sounds good until you actually read the bill.  It does not necessarily require a two-year moratorium because it provides an escape clause that could permit shale gas fracking to begin at virtually any time based on the word "or" and the definition of the key word "completion."

The bill language provides:

”S 2. The commissioner of environmental conservation shall not proceed to finalize and publish the revised SGEIS prior to the expiration of a 24 month period following the effective date of this act or until the commissioner of health determines that the completion of the studies deemed relevant by the commissioner of health have produced data sufficient to make a recommendation to the department of environmental conservation regarding the permitting of HVHF in the state (emphasis added).

S 3. The commissioner of the department of environmental conservation shall not proceed to finalize and publish the revised SGEIS prior (sic) completion of the United States Environmental Protection Agency "Study of the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources" and the Geisinger Marcellus Shale Initiative (emphasis added).”

According to Merriam-Webster, the primary definition of the word "completion" is: "the act or process of completing"

http://www.merriam-webster.com/dictionary/completion?show=0&t=1362607152

As a result, this bill would authorize Dr. Shah to make a recommendation to DEC to allow permitting HVHF any time he deems fit.

That provision is exactly consistent with Dr. Shah's 2/12/13 letter: http://www.toxicstargeting.com/MarcellusShale/documents/letters/2013/02/...

S 3 similarly would not bar adoption of a Final SGEIS because the two referenced studies are underway.

The utility and fate of this bill is complicated to say the least. The statutory and common law meaning of the word “completion” might be very tricky to sort out. Moreover, control of the State Senate is shared between the IDC and Republicaions. There has to be agreement to bring a bill to the floor for a vote. That might not happen due to the strong opposition of Senator Libous.

See: http://www.toxicstargeting.com/news/2013-03-08/libous-vows-block-vote-fr...

Conclusion

In conclusion, no shale gas moratorium law is likely to be enacted in New York because there is no four-way agreement between the Governor, the Assembly, the State Senate Republicans and the IDC.  

The Governor has repeatedly said that he does not support a legislative resolution to fracking and is waiting for Dr. Shah to complete the DOH Review.

Dr. Shah could deliver his DOH Review at any time.  As a result, DEC could adopt a Final SGEIS immediately thereafter and begin issuing shale gas extraction permits after a mere ten-day public comment period.

Putting the DOH Review on-hold pending fulfillment of all formal public participation requirements would prevent a Final SGEIS from being adopted.

Public participation for the DOH Review is also imperative because activists could advocate that the DOH Review include its own shale gas fracking Public Health Impact study that would be unprecedented in the nation.

This could resolve the shortcomings of the three studies referenced by Dr. Shah that are limited by the paucity of shale gas fracking impact data.  Those studies will not fully address all of the public health concerns about shale gas fracking.

Requiring DOH to conduct a Public Health Impact Study is surprisingly consistent with the policy advocated by DEC Commissioner Martens when he announced the DOH Review.

See: http://www.dec.ny.gov/press/85071.html

"…I have asked and NYS Health Commissioner Nirav Shah has agreed to assess the Department's health impact analysis. I have also asked Dr. Shah to identify the most qualified outside experts to advise him in his review. While the review will be informed by outside perspectives on the science of hydrofracking, the decision-making will remain a governmental responsibility (emphasis added)."

"I believe this action addresses any legitimate request for additional due diligence and study as well as ensuring DEC's ultimate decision on hydraulic fracturing is beyond reproach either as a matter of law or as policy. I believe the action also protects the independence of the DEC while availing ourselves of the best possible advice from the private and academic sectors.  While I am sure these actions will not satisfy all parties, I do believe it will result in the most thorough review of high-volume hydraulic fracturing in the nation, regardless of the final decision (emphasis added)."

Thank you so very much for all your able assistance. Keep slugging.

Very best regards,

Walter

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