On the Eve of the New Legislative Session: Situation Report

Each year, New York State’s Legislature convenes in early January to hear the Governor give his State of the State speech, in which the Governor outlines his legislative agenda for the coming session.  While much positioning takes place in the weeks prior to the official beginning of Albany’s New Year, nothing is official until the Governor speaks– then it all gets underway quickly.

This year, there is an Assembly hearing scheduled to gather testimony on the hydrofracking regulations promulgated by the DEC, scheduled for the day following the Governor’s speech, Thursday 1/10/13.  There has even been a bit of saber-rattling in advance of the speech on the subject: the Chairs of the Assembly Environmental Conservation Committee and Health Committee, as well as the Administrative Regulation Review Commission Chair, have issued a letter to Environmental Conservation Commissioner Joseph Martens and Health Commissioner Nirav Shah.  It calls on the administration to suspend the current public comment period (which ends on Friday, 1/11/13).  The reason for this, they state, is that the public has not had access to the studies, reports and other documents and data that have served as the basis of the proposed regulations.  To quote:

 If the public is to provide meaningful comment on the proposed regulations, the public should be able to see the studies and analysis that were produced at public expense.

We have expressed this call in a letter to Environmental Conservation Commissioner Joseph Martens and Health Commissioner Nirav Shah. We will press these issues at the public hearing we are holding in Albany on Thursday, January 10.

The ongoing concern that the review of human health impacts is insufficient continues to be voiced by fracking opponents, as well as the concern that fracking will add to climate change problems.  Some legislators are sympathetic to these views.  As regards health issues, the recently adopted policy of the American Public Health Association, “The Environmental and Occupational Health Impacts of High-Volume Hydraulic Fracturing of Unconventional Gas Reserves,” which suggest the use of the precautionary principle, doubtless hold some weight.

The balance of power in the NYS Senate is still unclear– while the Republicans hold the leadership, they have agreed to share it with the small Independent Democratic Caucus. Additionally, court challenges remain outstanding regarding the vote count in one race, although Republican Senator Amedore is prepared to take the seat in the session, based on the outcome of the lower court regarding which votes in the race would and would not count.

Meanwhile, the New York Times reports that the ever-increasing number of towns in NYS enacting local bans and moratoria are stymieing gas development in the state, even if, as expected, the final sGEIS and the final regulations are issued in late February, as is the current plan. Although, despite industry complaints about home rule, it is not clear if it is the possibility of zoning drilling out of towns, or the record low prices for gas due to a production-induced market glut, that make companies less bullish than they were a couple of years ago on drilling in NYS:

Beyond those constraints, natural gas prices have declined sharply in recent years, limiting potential profits even as technology opens the way for the exploitation of vast shale gas resources.

The most recent map of local laws (and movements to enact local laws) limiting the areas where the industry can operate is here:

Elected officials from many of these towns, as well as others, have protested the short 30-day comment period offered on the regulations.  The move, which was initiated as the holiday season got underway, had too little advance notice for most municipalities to offer comments on the regulations, while still complying with noticing requirements under the Open Meetings Law. The Elected Officials to Protect NY called on the Governor to extend the comment period on the regulations.  Even as they did so, environmental groups are continuing to urge individuals and businesses to make multiple comments on the regulations, through such sites as Thirty Days of Fracking Regs.

And, some “expert” has leaked the Department of Health’s appraisal of the health risks of fracking to the New York Times, out of a concern that the public has a right to see it.  The DEC, however, says the document leaked is out of date.

All the political players are in their opening positions.   The Governor’s speech is being celebrated by busloads of demonstrators rallying in Albany.  The games are begun for the new year, starting tomorrow.

 

30-day Comment Period on DEC Regulations Begins Today

Starting today, 12/12/12, the DEC will be accepting comments on their recently-released updated draft regulations for hydraulic fracturing.  The original draft regulations were released over a year ago, and the law stipulates that if the final regulations are not put into place within a year, a new public comment period must be initiated.

Advocates for stringent environmental and health reviews had hoped that the DEC would simply allow the rulemaking period to expire, and start the process of crafting regulations over again at some time after the draft SGEIS was finalized, including the recently- commissioned health review being completed by Dr. Shah, Commissioner of Health, and 3 outside experts. That would allow the regulations to be formulated based upon environmental threats and mitigation measures identified in the environmental review.  Instead, the DEC chose to request a 90-day extension of the rulemaking process. It scheduled a mandatory 30-day public comment period over the busiest part of the holiday season, and will attempt to finish up the process of issuing final regulations on hydraulic fracturing in February, concurrent with the anticipated release of the SGEIS.  In other words, the regulations will appear in final form at the same time as the environmental review.  Many see this as a rush to permit the controversial drilling, and view the timing of the public comment period as engineered to suppress public involvement.

A number of organized efforts to encourage the public to comment on the regulations have been launched.  34 groups have banded together to create a site, “30 Days of Fracking Regs” which guides would-be commenters through the regulatory documents point by point, day by day, throughout the entire comment period, which ends Jan. 11, 2013.  Another approach is Chip Northrup’s guide-in-a-linked-blog-post.  Chip has also made a repository of information about the regs in this wiki.

It is also possible to go directly to the DEC page on the regulations and read them unguided, and then submit comments via a web form.  Written comments can also be submitted to the DEC by mail at:

Attn: Draft HVHF Regulations Comments
New York State Department of Environmental Conservation
625 Broadway
Albany, NY 12233-6510

Meanwhile, the contours of the “Health Impact Review” of the SGEIS remain out of public review. It has been learned from examination of contracts that the 3 academic experts named to assist Dr. Shah in completing the “review” have been allocated relatively short amounts of time for the task.

The balance of political power remains volatile in NYS, with the precise make-up of the NYS Senate still undetermined (some races are not yet settled), and, most recently, Democratic Senate Conference leader Senator Sampson offering to step down as leader rather than jeopardize the unity of the Democrats in the body.  Of course, the Independent Democratic Caucus has already announced a power-sharing agreement that those 5 Democratic Senators crafted with the Republican leadership.  Which bills from last session, and/or which new bills about fracking that are introduced this coming session, will move in the new Senate, possibly under bi-partisan control?  It remains extremely difficult to know, although none of the Independent Democratic Caucus members have been particularly outspoken about the issue.  Much will depend upon which Senator is named Chair of the Environmental Conservation Committee, through which legislation on this issue would pass.  If the current Chair, Senator Mark Grisanti, retains that position, it could be very difficult to bring legislation to the Senate floor.

This much uncertainty about the political situation is unusual, but, some uncertainty is the norm in this part of the legislative calendar– before the new session begins with the Governor’s State of the State speech, and the Senate and Assembly meeting to set the session’s rules, dole out committee assignments and chair positions, and begin deliberating on bills.  Everything will, to a certain extent, start over when the Governor makes public his agenda for the year in his speech on 1/9/13.  Those opposed to fracking in NYS plan to be there, to remind the Governor and the legislature that fracking is still one of the most contentious issues to be addressed.

Calculated Adjustments in Positions– Strategy, Strategy, Strategy

There have been a number of important position “adjustments” recently by governmental actors and agencies with regard to hydrofracking. Here is a short list of some of them, with links to good information about any you may not as yet know the details about:

–Senator Ron Wyden, who is expected to head the US Senate’s Energy Committee next year, is pressuring Steven Chu, Obama’s Energy Secretary, to explain the criteria that will be used to make decisions on the applications pending to convert LNG importing facilities to exporting facilities.  He has written a letter to Chu, and given interviews on the subject to journalists. The Hill’s Energy and Environment blog links to the letter he wrote, asking for an “all-inclusive description” of factors the department will consider as it decides about the export applications. They quote:

“It is important that DOE include in its description how it considers current and proposed exports’ impact on domestic natural gas supplies, air pollutant emissions, domestic natural gas prices, electricity prices, U.S. employment and manufacturing, and economic growth.”

–In a decision posted November 15, US District Court Judge David Hurd ruled that Chesapeake Appalachia can’t use force majeure as a reason to claim that expired leases are still in force.  The company had been trying to claim force majeure based on the idea that NYS review of high volume slick water fracking was preventing them from exploring for oil.  But, the judge  noted that there are many other ways to explore for oil, for which a permit can currently be obtained.  So, the state was not preventing the company from exploring for oil. This will allow a number of landowners to end their leases, as the term is up.
–Governor Cuomo, answering a question posed by a reporter, indicated that the DEC would “have to” apply for an extension, as it would not meet the November 29 deadline for promulgating regulations.  An excellent analysis of the meaning of this was published by NRDC lawyer Kate Sinding on her blog. She suggests that asking for a 90-day extension on the regulations (rather than starting over), results in asking for public comment on the regs that are meant to mitigate environmental impacts (including impacts on human health) before the revised SGEIS makes clear what those impacts would be.  Kate calls that “putting the sled before the reindeer.”  Going forward in this manner puts the 30-day public comment period on the regs squarely in the middle of the holiday season. The Times Union reports that the DEC confirmed this course of action:

DEC spokeswoman Emily DeSantis subsequently confirmed it: “DEC will file a notice for a 90-day extension allowed by state law to continue to work as Dr. Shah’s health review of the SGEIS comes to completion,” she said in an e-mail.

–The Independent Democratic Caucus— a group of 4 Democratic Senators that have expressed a willingness to collaborate with Republicans in the NYS Senate– have indicated that they would like to establish their Caucus in the Senate’s rules.  As reported by Joseph Spector of Gannett:

In an interview this afternoon with Gannett’s Albany Bureau, Klein, D-Bronx, disputed that the IDC would back Senate Republicans to keep the majority. He said the IDC wants the Senate rules changed so it has “equal authority over everything.” Klein said that “the rules of the Senate is what governs what we do every day. And we can do something, I think, very bold, very creative, something that I think is going to work very well in the New York state Senate by creating a third conference, the Independent Democratic Conference, as a permanent conference in the rules.”

How will these changes in position impact the ongoing fracking debate?  Not clear.  However, it is obvious that the election fall-out is resulting in delicate strategic adjustments.  Stay tuned– and stay alert.

Morning-after Election Analysis, NYS Government Edition: Outlook Murky as Mud

Over the past two years, Governor Cuomo has exerted a very strong dominance over NYS politics.  He has done that through a triangulation strategy, sometimes working with the Democratic Assembly, and sometimes siding with the Republican Senate.  In this election, he even supported and actively campaigned for a Republican incumbent Senator, Steve Saland, who was opposed by both a Tea Party challenger AND Democrat Terry Gipson.  While Cuomo cast his support for Republican Senators as a reward for their help in passing Marriage Equality in NYS, many commentators also mentioned that a divided legislature provided Cuomo with much more power than a Democratic Party controlled one.  In our system of “3 men in a room” governance here in NY, a conservative Democrat positioned in the Executive branch between a left-leaning Democratic Assembly and a Republican Senate has a masterful position, indeed.

New York State, however, continues to trend toward becoming an ever-bluer shade of blue, as might be indicated by Obama’s 63%-36% win over Romney (barely budging from Obama’s last win), or Gillibrand’s even greater 72%-27% win over Long for US Senate.  The NYS GOP fought hard and long to draw lines for the NYS Senate that would gerrymander the districts enough to still ensure that GOP incumbent State Senators kept a majority in that house, which has long been their bastion of power in the Empire State.  However, ultimately, a judge drew the lines…. and that has resulted in some upsetting of the applecart.  Just how much upsetting, however, is difficult to discern from here.

Both parties have announced that they are confident that they will have a majority in the NYS Senate when all the votes are counted. From Capitol Confidential blog:

Democrats finished ahead in four state Senate seats last night, putting them on track for a 33-30 majority in the state’s upper chamber and, consequently, putting the party in charge of every major level of power in the state.

Democratic Senate Campaign Committee Chairman Mike Gianaris was quick to boast of his party’s new majority, but Republicans, including Senate Republican Campaign Committee Chairman Tom Libous, were far from rolling over.

In dueling interviews Wednesday morning on WGDJ, each man laid out his case.

“It was a tough night for us, but it is not all lost. We still have some opportunities and options open to us,” Libous, of Binghamton, said.

“The voters of this state sent a very loud and clear message last night that they want to see Democrats in control of the state Senate,” retorted Gianaris, of Queens.

The blog post goes on to explain that there are six things that will actually determine who controls the chamber (you really should go read the whole thing). First, there are still 7,500 paper ballots to be counted in the 46th district, where the Democratic challenger Tkaczyk holds a tiny 139 vote lead.  Then, there is the not-insignificant matter of whether or not all Democratic Senators will choose to caucus with the Democratic caucus. Four Democratic Senators formed a break-away caucus, the Independent Democratic Caucus, and often voted with Republicans over the past two years.  Additionally, Simcha Felder, who won his seat decisively, recently told the NY Post that

…nothing has changed in the last six months since I announced my candidacy. I said I would caucus with any party that will allow me to deliver the most to the 17th Senate district and its constituents.

And, of course, there is every reason to believe that there will be court challenges brought about results in districts where large numbers of voters faced hardships due to the effects of Hurricane Sandy.

So, realistically, it will not be perfectly clear which party has control of the NYS Senate for some time to come.

However, even if it should turn out, as it looks from here, that the Democrats control the Senate by a 33-30 majority, what effect that will have on the State Senate bills concerned with fracking can’t be immediately discerned.  If that seems counter-intuitive, please think about it a little more deeply.  Traditionally, when a party in NYS is in the minority in a house of the legislature, it does not have just less power in that house, it has almost no power in that house.  That ranges from the funds to hire staff to the ability to move a bill out of committee to the ability to bring a bill to the floor for a vote.  Because of this, it becomes extremely easy for legislators in the minority to espouse very pure opinions on controversial issues, and write bills that activists find exemplary.  Why is it easy?  Because there is none of the give-and-take negotiating that accompanies actually trying to get a bill passed.  Secure in the knowledge that nothing they can do has a snowball’s chance in hell of being enacted into law, legislators are free to please advocates 100%, holding nothing back whatever to please even other members of their caucus, let alone the Governor or the other house of the legislature.

Once that minority party finds itself in power in the legislative house, the dynamic changes markedly.  Now, there is an established pecking order within the party caucus in the chamber that results in significant horse-trading, often between bills about issues that have absolutely nothing in common with one another, other than the interests of particular Senators who must compromise between each other.  Additionally, in the case of NYS Democrats taking over the Senate for the second time in 4 decades, there is the legacy of “the last time this happened” to live down.  If the Democrats do ascend to the majority, they will be very motivated to seem prudent, thoughtful, and competent, in order to counter the criticism that the last time that they were in control, the chamber was dysfunctional.

How will a Democratic State Senate deliver on promises to ban fracking?  Understanding that there needs to be cooperation from the two other “men in the room” (the Governor and the Speaker of the Assembly) to effect a law, look for an incremental approach.  State Senators, newly moved to Committee Chairmanships, will likely begin with smaller steps, while continuing to keep a fracking ban bill in committee, until and unless they can at least pass it through their own chamber.  It would be very unsurprising to see a new moratorium, perhaps a full-fledged Health Impact Analysis by an outside, unaffiliated investigator, possibly an assessment of the impact a NYS fracking industry would have on existing industries in the same geography, or an assessment of impacts on housing values, local tax bases, and local government revenues.  The antiquated ad-valorem tax that NYS uses to calculate oil and gas taxes might be revamped, or a severance tax initiated.

Perhaps the most important change that could be in the offing, should the Democrats take control of the State Senate, is that Senator Tom Libous of Binghamton would no longer be the second most powerful person in the Senate.  Libous is a hard-liner on the fracking question, and his power has weighed heavily in the calculations made by others in NYS government about where they stand on the issue of fracking.  While locally, in Broome County, fellow Republican hard-liner and Libous protege Debbie Preston handily won the race for County Executive, it may become increasingly difficult for the people of this district to count on Libous to deliver for them.  Slowly, over time, a weaker legislator losses the high level of support that he enjoys in his district when, as a very powerful Senator, he is able to deliver a disproportionate level of pork to his constituents.  Arguably, the residents of Tom Libous’s Senate district are the most actively pro-fracking people in NYS.  A weaker Libous will allow others– probably most notably Assemblywoman Donna Lupardo– to lead those people toward a different vision of the future.  In the end, the ability to lead the people of the Southern Tier to focus on some alternative way of building a prosperous future may be the key to keeping fracking out of our state.

Court Documents Illuminate Pennsylvania Agency Water Test Results Suppression– Legislator Calls For State and Federal Investigation

Can Pennsylvania residents rely on their Department of Environmental Protection to give them accurate and complete assessments of their drinking water when they believe that it has been contaminated by hydrofracking?  Not so much, according to depositions of two department employees read into court records as a part of a civil case that has been lodged by homeowners against gas drilling companies.

One of the employees deposed was Taru Upadhyay, the division director of DEP’s Bureau of Laboratories.  She said that water test result reports that omitted some of the findings from lab tests were routinely made available to homeowners, depriving them of all of the information that the lab had found in their tests.  This omitting of information was done at the direction of the division of Oil and Gas, she says in the court records.  As per Post-Gazzette report:

In a second deposition filed in the case, John Carson, a DEP water quality specialist, said a special lab code for Marcellus Shale water contamination complaints is used statewide. He also said the department failed to provide its water quality specialists with training to help them interpret the lab reports and identify contaminants that could signal Marcellus Shale-related impacts.

From a press release from the office of State Representative Jesse White on the topic:

According to the transcripts, which have been filed as exhibits in a related lawsuit in Washington County Court of Common Pleas (Haney et al. v. Range Resources et al., Case No. 2012-3534), the DEP lab would conduct water tests using an EPA-approved standard, but the DEP employee who requested the testing would use a specially designed ‘Suite Code’ which limits the information coming back from the DEP lab to the DEP field office, and ultimately to the property owner.

The code in question, Suite Code 942, was used to test for water contamination associated with Marcellus Shale drilling activities, yet specifically screens out results for substances known to be hazardous and associated with Marcellus Shale drilling. Similar codes, Suite Code 943 and 946, are also used by the DEP in similar circumstances; both of these codes omit the presence or levels of drilling-related compounds.

As a result, if Suite Code 942 is applied, the report generated for the homeowner by DEP only includes eight of the 24 metals actually tested for: Barium, Calcium, Iron, Potassium, Magnesium, Manganese, Sodium and Strontium. The homeowner would not be given results for: Silver, Aluminum, Beryllium, Cadium, Cobalt, Chromium, Copper, Nickel, Silicon, Lithium, Molybdenum, Tin, Titanium, Vandium, Zinc and Boron.

There is no reason that the results of these tests should have been suppressed, as these metals could help a homeowner to establish that nearby mining activity had allowed elements typically found only at the deep Marcellus layer to be introduced into the water table.  Indeed, that is why the lawyers for residents deposed the DEP employees– Washington County residents were suing Range Resources and 12 of its subcontractors for ruining their well water.

State Representative White is calling for both state and federal investigations.

This is beyond outrageous. Anyone who relied on the DEP for the truth about whether their water has been impacted by drilling activities has apparently been intentionally deprived of critical health and safety information by their own government,” White said. “There is no excuse whatsoever to justify the DEP conducting the water tests and only releasing partial information to residents, especially when the information withheld could easily be the source of the problem. This goes beyond incompetence; this is unlawful and reprehensible activity by the DEP. If these allegations are true, there needs to be a thorough and objective investigation to determine if someone belongs in a jail cell.

 

UPDATED: What Level of Governmental “Homeland Security” Is Monitoring The Growing Louisiana Sinkhole?

UPDATE:

1/4/12– Bayou Corne sinkhole is still a local, not state or national, problem.  The Parish Sheriff is left responsible for a potentially very dangerous situation.  See video, here: http://www.klfy.com/story/19990672/assumption-sinkhole

Back in mid-August, national news covered briefly what ABC News called a “mysterious sinkhole” that had opened up in an Assumption Parish, Louisiana wooded area dotted with gas, brine and waste storage wells.  150 people were evacuated from the rural area surrounding, amid fears of possible explosions and radiation. People are still evacuated, the sinkhole is growing, and it is still “mysterious” what is going on there, but that is not a national news event.  And, meanwhile, it is murky what level of governmental oversight is being deployed to monitor conditions, which continue to deteriorate. In the direction of additional petrochemical storage within the salt dome area.

We can be pleased that some of our nation’s best geophysicists have been called in to consult, from the Sandia Lab and the USGS– as per this from Phys.org:

The sinkhole opened up overnight on Aug. 2 off the western edge of the salt dome near Bayou Corne….  The USGS, which is known for its seismic expertise, already had been keeping an eye on the area because of harmonic tremors that began in June, along with gas bubbling up at seven different locations in the wetlands of Bayou Corne and nearby Grand Bayou. “What they were seeing was some sort of fluid movement through fractures, which they thought might be the natural gas that was bubbling up in the bayou,” Borns said.

Authorities first thought the source might be a broken pipeline, but all pipelines checked out. Then they started exploring whether something was happening within the caprock or surrounding sediments where natural gas comes from. The harmonic tremors continued for about six weeks but stopped after the sinkhole formed. Since then, only small seismic events continue to be recorded near the cavern under investigation, Borns said.

The cavern was developed for brining operations, in which companies dissolve salt to extract chlorine for use as a precursor for petrochemicals, he said. On Aug. 22, the Louisiana Governor’s Office of Homeland Security and Emergency Preparedness formally asked Energy Secretary Steven Chu for help from Sandia. The Labs previously worked on cavern collapse and sinkhole formation problems on Weeks Island, La. Borns said Sandia experts are called in once or twice a year to study similar concerns.

Although, the thought of these scientists “consulting” does not reassure the residents of the area.  A local blog, Louisiana Sinkhole Bugle asks “Why Aren’t There More People Working On The Sinkhole Problem?

Here are just some of the things they are noting:

• No ‘live data’ available to the public from the site.
• Very little manpower at the sinkhole.
• No outside help is requested via blogs or teleconferencing from other experts.
• No inquiry into relationship between the sinkhole and the BP disaster.
• No concern about the cypress tree die off for miles around.
• Ignoring evidence  the Bayou Corne sinkhole affects events (bubbling, fires etc.) in other parishes.
• Admitting they are in unknown territory intellectually but not asking for outside help.
• Having federal agency experts on site but not telling the public.
• Knowing this is a possible national emergency or event and pretending it is a parish concern only.

The response does, in a way, remind one of the BP disaster.  The local news was reporting that state officials were hopeful of an answer to the question “what the heck is going on?” would come “soon”  back in late September, just about four months after gas was found to be bubbling from the surface of the land:

Nearly four months after bubbling was first discovered in the waters of Bayou Corne, state officials are hopeful this will finally be the week they get answers to the question of what caused the sinkhole….The answer to just what caused the sinkhole may come this week as crews from Texas Brine have now begun the diagnostic phase after drilling into the cavern over the weekend.

Answers, however, did not come… instead, more land fell off into the sinkhole.

So, are they calling in the Marines?  Or, who do you call when the land is subsiding mysteriously, falling into a growing hole, there are methane bubbles erupting all over the place on land and in swamps, and salt dome storage wells full of gas, poison brine, and toxic waste are located right nearby? Can Al Qaeda please take credit for this, so we can get some help here?

The oil and gas industry is exempt from most ordinary federal monitoring requirements, such as the EPA’s Toxic Release Inventory (which some environmentalists are currently suing the EPA over). For some local residents, waiting for government or industry to solve the problem seems futile, as property values and home sale prices in the surrounding countryside sink with the sinkhole:

Grand Bayou resident Randy Rousseau said the disaster is the last straw for him.

“I don’t feel comfortable here. I don’t feel safe. I don’t think this will get any better. The sooner I can get out of here, the better,” he said.

He’s had to evacuate three times previously. That includes when the town was evacuated on Christmas day in 2003 for 50 days when natural gas began leaking up from a salt dome storage cavern and bubbling up into water wells.

In an eerie parallel to the BP disaster, the company is drilling more wells (“when the only tool you have is a hammer, everything looks like a nail”), while government insists that it come up with a plan by, oh, a couple of weeks from now:

Two new drilling wells are being installed near the Bayou Corne sinkhole site. SHAW has already installed three wells east and west of the site and will be putting another one on its property not far from there.

Assumption Parish Office of Emergency Preparedness officials say the wells will be used to vent off more gas…… The Department of Natural Resources Commissioner has ordered Texas Brine to present a plan and timetable to the state by November 13.

However, there may be a US military investigation going on, concurrently, to determine what, exactly, is going on underground in Louisiana.  That is related to more mystery– a huge explosion (or, according to eyewitnesses, a series of as many as 10 explosions in rapid sequence) near Camp Minden. Camp Minden has acknowledged, after a long search, finding an underground weapons bunker that had exploded– which would explain the 1.5 mile-high smoke cloud that formed and was noticeable on radar.

The image shows a plume developed over Camp Minden at 11:28 pm. The NOAA says the debris/smoke plume rose nearly 7,000 feet into the air. The plume then traveled to the northwest at 10 miles per hour, slowly dissipating with time. The plume continued to disperse as it approached the Webster Parish, Bossier Parish border. By 12:05 am Tuesday, the plume had completely dissipated.

Webster Parish Sheriff Gary Sexton says hazmat experts tell him the underground bunker contained explosives, and worked exactly as it was designed to do. Sexton describes the bunker, in the “L-1 area,” as an “igloo,” constructed of concrete. He said they were built in the 50s. The underground bunkers are designed to send any blast up instead of out to lessen the shock wave impact.

Authorities have not said yet what kind of explosives were stored in the bunker. No one was injured, and the investigation continues.

Physicists are cited by some sources suggesting that it is entirely possible that venting methane– from the aquifer that the Camp Minden area shares with Assumption Parish– set off by a meteorite, could have set off a chain reaction of explosions:

At least ten powerful explosions Monday night at Camp Minden after a meteor shower have raised many questions, including whether Louisiana’s sinkhole area aquifer explosive-level methane could have traveled north where hit by a meteorite causing the blasts, a possibility according to a physicist and an astrophysicist interviewed by Deborah Dupré Friday. Heavier meteor showers are predicted this weekend.

“If there is enough methane in the air, just about anything (like a rock hitting another rock, causing a spark) could ignite explosions,” physicist Steve Knudsen said in an email Friday.

What agency of our government is responsible for protecting us from the dangers of methane hanging in the air, where “just about anything” might turn it explosive?  Currently, the Louisiana State Police are on the Camp Minden case:

Louisiana State Police say it could weeks or even months before the cause of the blast at Camp Minden on Monday is known.

State officials say hazmat crews began collecting photo evidence from the scene on Tuesday to send to the Hazardous Materials Unit in Baton Rouge, where they’ll comb through them to try to determine what caused the powerful blast.

“It’s extremely detailed,” explains Louisiana State Police Trooper Matt Harris. “….You want things done right, especially with explosive materials and stuff like that.”

If they find the bad guy, we can all feel more secure.  Unless, of course, the bad guy is methane made unstable underground by extreme extraction activities, and all the salt domes available to try to contain it have been over-drilled and are leaking methane, themselves, as well as subsiding to below sea level.   There may not be a jail space available.

State and local officials have been answering some questions, though.  Yes, the gas bubbling up is being compared to the gas that is being drilled for in the area– but those tests won’t be ready for weeks.
On the bright side, there would be nothing like a bubble of methane exploding over Louisiana to ignite that other kind of shale gas bubble, the one on Wall St.  Read about that one being about ready to blow here: US Shale Gas Bubble is Set to Burst.

Courts and Agencies Around the States, and the World, In the News On Fracking

While the most important decisions to determine whether and where we might have hydrofracking in NYS will be taken in Albany and at the local-NY municipality levels, what happens in other states has some indirect bearing on the mood and context in which those decisions are taken.

This week, the State of California was sued over hydrofracking. The lead litigant is Earthjustice, and they filed the suit on behalf of the Center for Biological Diversity. Also signed on the suit are Earthworks, the Environmental Working Group and the Sierra Club.  Additional environmental groups have also joined the suit.  They allege that California has not been following its own laws over the past year, as permits have been issued for fracking.  As reported by the (law-firm sponsored) blog Shale Watch:

The lawsuit, filed in Alameda County Superior Court, alleges that California’s Department of Conservation is approving oil and gas drilling permits without requiring preliminary environmental reviews or adequately monitoring possible consequences. The environmental groups are seeking a court order declaring that fracking violates current state law and prohibiting any new permits from being issued without a full analysis of the risks being performed. California currently does not distinguish between fracking and traditional techniques used to extract oil and gas. “The lawsuit is about [making] the state follow existing environmental law and just getting basic information to the public about what projects are being proposed, what potential impacts there are and making sure those impact are mitigated,” said an Earthjustice attorney.

There is, as of yet, only a little support for a ban in the California legislature.  But, new regulations are in the process of being drafted, as reported in Reuters:

Given the public scrutiny, new rules are not expected to be finalized until mid-2013, officials said, though a draft set of rules are expected soon. State legislation to halt fracking, however, has so far received little support.

The laws of California frequently influence state law in the rest of the country.  It will be interesting to watch this unfold in California.

From the big state of California at the state level, we turn to the little state of  West Virginia, at the local level, where a court has held a gas company responsible for paying for a black cemetery they bulldozed while building a road to a drilling site.  The details of this case make it so poignant that its impact is likely to extend beyond the rural area where it happened.  As reported by the Charleston Gazzette:

Gas drillers who plowed through a cemetery for a historically black coal camp community in 2004 were ordered to pay $200,000 in punitive damages Wednesday, on top of the $700,000 in compensatory damages a Logan County jury awarded a day earlier.

Jurors ruled Tuesday that Equitable Production Co. and subcontractor General Pipeline were reckless when a bulldozer operator desecrated the Crystal Block Cemetery near Sarah Ann….

“This jury has found that Equitable’s reckless treatment of mountain cemeteries will not go unpunished,” said the plaintiffs’ attorney, Kevin Thompson.

If this happened accidentally, you might be able to see how the gas company would contest this.  But, the graves were neither inconspicuous nor old– they were marked by headstones, and the last person buried there was put in the ground in 1965.  Relatives visited yearly on Memorial Day to tend and neaten the gravesites.

The damage was discovered by James Olbert, whose father, Daniel, is buried there, but it continued while two more roads were built.

Resident Bud Baisden pleaded with a crew member to stop, the lawsuit said, but the worker used racial slurs in describing who was buried there, and the bulldozing continued.

Roughnecks on a mission to frack– and their industry-paid lawyers– respect neither the living nor the dead in the path of their dozers. This time, they at least were assessed a little fine for desecrating the dead.

In Pennsylvania, a Duke University researcher, Rob Jackson, has analyzed data gathered by the EPA about the well water in Dimmock, PA, and concluded that Cabot Oil has polluted people’s wells.  It’s important that scientists from outside the EPA analyze the data the agency gathers, as scientists within the agency have often found that their work on this issue has been severely edited by political appointees (see Ian Urbina’s coverage of this).  As reported by Bloomberg:

n a 2010 consent order, the Pennsylvania Department of Environmental Protectionfound that 18 drinking-water wells in the area were “affected” by Cabot’s drilling. The company disagreed, and applauded when the EPA cleared the water in Dimock as safe this July. State regulators ruled last month that Cabot could begin fracking seven wells in the affected area of Dimock, ending a moratorium imposed in 2010.

The latest data, which the EPA began to collect early this year, were posted on the agency’s website in response to Freedom of Information Act requests from Jackson, Cabot and others. The EPA submitted the results to its researchers conducting a broader nationwide study about the effects of fracking on drinking water, agency spokesman David Bloomgren said.

Not that this new data is at odds with data already collected and analyzed: the gas in the water wells matches the gas in the gas wells every time its checked.  Says Fred Baldassare who was the hydro-geologist at the Pennsylvania Department of Environmental Protection who analyzed the isotopes of methane in Dimock when the state began investigating homeowners’ complaints in 2009, and now owns his own private company testing water:

The molecular and isotopic evidence I saw was that the gas in the water supply looked like the gas in the Cabot gas wells.  It’s doing more damage than good to keep denying… Let’s get past that.

Cabot continues to fight taking any responsibility for the damage to peoples water supplies, lives and health. It is as yet unknown how the EPA will respond to analysis of their data by independent scholars.

How do we keep federal agencies accountable?  Well, the vast bureaucracy in Washington has a bureau for that; the Government Accountability Office has issued a report, OIL AND GAS: Information on Shale Resources, Development, and Environmental and Public Health Risks. It’s a hefty report, but a review in Ecowatch notes that it

concludes that fracking poses serious risks to health and the environment. The report, which reviewed studies from state agencies overseeing fracking as well as scientific reports, found that the extent of the risks has not yet been fully quantified and that there are many unanswered questions and a lack of scientific data.

I note, just on first perusal of the report, that it clarifies the extent and estimated recoverable reserves, in light of the important new information from the USGS, which slashes previous overinflated claims of industry about the scope and value of the recoverable resources.

The USGS, unlike the politically-vulnerable EPA, seems to be continuing to produce excellent reports without political interference. A recent paper on the impact of gas development on the land use and land cover in two Pennsylvania counties is well worth reading.   The authors, Slonecker, Milheim, Roig-Silva, Malizia, Marr, and Fisher, using impeccable GIS spatial analysis, quantify the land directly used up by the drilling and its infrastructure, as well as the fragmentation of the forest environment and its effects on wildlife.  If you don’t have the time to read it in full, the one sentence version is:

Agricultural and forested areas are being converted to natural gas extraction disturbance.

And the one-map version is:

As the authors do not determine indirect impacts on agricultural land, we are still left to wonder how this change in the landscape is related to the 18+% drop in dairy production and dairy animals in counties like these over roughly the same time period.

Meanwhile, in Europe, Germany’s Federal Environment Agency and Federal Ministry for the Environment, Nature Conservation and Nuclear Safety have issued a joint report.  There are a lot of important conclusions, but, perhaps the most important statement in the press release about the report is:

The experts currently advise against large-scale use of hydraulic fracturing to tap natural gas in unconventional deposits in Germany.

Individual wells, under strictly controlled conditions, may be allowed for research purposes.

Also in Germany, an independent group of scientists have issued a Hydrofracking Risk Assessment paid for, but not directed by, Exxon-Mobil. They found some major risks, as well as minor ones. A good synopsis is available at EcoWatch, along with information about the European Commission’s Environment Directorate-General’s comprehensive report.

Meanwhile, right back here in upstate NY, the Buffalo News contain a report from a local farmer who contends that fracking waste spoil his hay fields, and nobody will do anything about it. So, he, too is suing:

Finally it dawned on me. No one would help me. Not the drilling company. Not the Oil and Gas Association that represents the drilling company. Not my own town government, not even the state agency that gave the driller a license to ruin my hay field.

Now I am buying hay at $8 a bale for my cattle – many times more than the costs to grow my own hay. I have hired a lawyer and I am suing the drillers.

The next time you are tempted to believe the oil and gas industry propaganda, stop by my farm for a dose of reality.

Federal Agencies Weigh In: USGS on Utica Shale, US Fish and Wildlife Service on Pipeline, NSF Adds Public Health Expert to Study of Impacts

Way back nearly a decade ago, when then-VP Dick Cheney was convening secret talks with the Energy industry that culminated in, among other things, the Halliburton loophole that exempts oil and gas exploration activities from our major environmental protection laws, we were all clueless about the evolving high volume horizontal hydrofracking method of gas extraction being tried out in the arid West.  Just like the rest of us, most of our federal agencies have been playing a game of catch-up as the industry has stealthily moved forward, keeping much of the detail about this extreme energy exploration under wraps.  Like rural communities where farm families signed leases before realizing what the industry intended to do, some of our federal agencies have been slow to recognize some of what the industry has been up to.  Just as communities begin to speak up, now that more is known about fracking, so, too, bureaus of the federal government focused on more than just minerals extraction are beginning to issue information relevant and related to the new technique and its infrastructure.  This week brought news from several agencies.

The agency perhaps most directly connected to mining of oil and gas is the USGS, the United States Geological Survey.  The USGS had initially inventoried the “unproved technically recoverable” gas in the Marcellus Shale in 2002 at a low, 2 trillion cubic feet for the entire formation.  Later, influenced by extremely high projections by individual scientists, most notably Terry Engelder, who were familiar with the new technique for unconventional extraction, the Energy Information Agency used an estimate of 410 trillion cubic feet.  Again– these are “unproved technically recoverable resources,” with no effort made to determine whether or not they can be recovered economically.  By 2011, though, the USGS had come to understand the capacity of new techniques, and did a revision of it’s earlier estimate– the estimate was raised, but, nowhere near the inflated claims of Engelder, who estimated even higher than the EIA, at 489 trillion cubic feet.  The USGS scientists slashed the EIA estimate by 80%, bringing the Marcellus unproved technically recoverable reserves estimate down to just 84 Trillion cubic feet.  A trillion here, a trillion there, pretty soon your head is spinning.  To put it in perspective, the annual usage of natural gas in 2011, in the US, was 24,316,368 million cubic feet.  Bloomberg notes that the new Marcellus estimate brought the total from the previous assumption that there was 17 years worth of gas, as measured by US total demand in 2011, down to 6 years’ worth.   If that is the kind of thing that would send you straight for the wind turbine blueprints, well, you are not an oil and gas company.  Instead, we began to hear hyped estimates of the truly massive amounts of gas to be had in the deeper Utica shale gas formation.  Once again, gas companies touted a century’s worth of gas to be had…. a Saudi Arabia of gas….

And, once again, the USGS scientists are bursting their (asset price) bubble. This week, a new report from the USGS puts the technically recoverable resources at 38.2 trillion cubic feet for gas, and 208 million barrels of natural gas liquids (the “wet gas” section produces some useful chemicals along with the gas).  Or, in US-use years, about 3 years’ worth or so.  Again, no estimates made by this agency, which does geology, not economics, as to the cost of getting those reserves to the surface– either in dollars, or in environmental damage, or in human and livestock health effects. They do, however, helpfully map the areas where the gas and liquids are most likely to be found.  The “sweet spot” in New York State is fairly limited.

 

Other federal agencies have also been busy trying to catch up, and check up, on the new extreme gas extraction method.  The National Science Foundation does this kind of work through academic researchers. This past week, it was announced that a public health expert would join an NSF-funded interdisciplinary team looking at fracking effects on communities.  University of Colorado Denver/Anschutz Medical Campus announced that Chair of the Colorado School of Public Health, Environmental and Occupational Health, John Adgate, would be added to a team of experts studying “ways of maximizing the benefits of natural gas development while minimizing potential negative effects on ecosystems and communities.”  The team, as a whole, has a 12 million dollar grant from NSF.  Other colleges and universities involved include the Colorado School of Mines, Colorado State University, University Corporation for Atmospheric Research, National Renewable Energy Laboratory, National Oceanic and Atmospheric Administration, University of Michigan, Colorado School of Public Health, and California State Polytechnic University Pomona.  In general, it seems a good thing that the NSF and/or the researchers decided that public health issues should be addressed…. although, with the Medical School that the researcher hails from being named after the billionaire owner of Anschutz Energy, one could have some concerns that the most rigorous inquiry might be avoided….

Another federal agency that focuses on some of our precious natural resources is the US Fish and Wildlife Service.  This week, in the Oneonta area, that agency commented to another federal agency, FERC, the Federal Energy Regulatory Commission, on the potential impacts of the proposed Constitution Pipeline Project.  The Oneonta Daily Star reported:

In a comment sent to the Federal Energy Regulator Commission on Friday, a Fish and Wildlife field supervisor, David A. Stilwell, raised over-arching concerns about the need for the $750 million project slated to carry gas from Pennsylvania to Schoharie County through a largely underground pipe 30 inches in diameter.

“Project documents indicate that the full capacity of the pipeline is currently under contract,” Stilwell wrote. “However, it is not yet clear where the demand is for the gas that is being extracted in Pennsylvania. Nor, has it been explained how the exiting pipeline infrastructure fails to provide adequate service.”

Stilwell then pointed to existing pipelines that he said carry gas from Pennsylvania to the New York City area: Tennessee Gas 300, the Stage Coach to Milennium Route and Texas Eastern.

“The FERC should require a more thorough review of these projects as alternatives for delivering gas to southeast New York,” he said. “Adequate information on project purpose and need should be provided by the EIS (environmental impact statement).”

Would the extraction industry rush to put in infrastructure not currently needed in advance of opening up NYS to shale gas drilling?  Stranger things have happened.

In addition to the above news, some little-heralded news took place in Owego, NY– documentation including maps and pictures on Marcellus Effect blog.  Drilling began on a Marcellus Shale gas well.  Since this particular well is vertical, not horizontal, it does not need to wait for a DEC permit until the SGEIS has been finalized and the new NYS regulations on HVHF go into effect.  Yes, Virginia, they ARE drilling the Marcellus in New York.  Now.

Binghamton No-Fracking Law Overturned on Procedural Basis; Home Rule on Land Use Moratoria and Prohibitions Affirmed In Judge’s Decision

The first overturning of a local law seeking to prohibit fracking and related activities in a municipality took place on Tuesday in Binghamton.  The City of Binghamton’s local law has been overturned by state Supreme Court Justice Ferris D. Lebous.  The case involved a local law enacted by the City of Binghamton late last year, declaring a two-year prohibition on gas-drilling and related activities within the city’s borders, based on the city’s police powers and a perceived immanent danger to the sole source aquifer.  While the law would have had an effect similar to a land use moratorium, it was not enacted using the portion of state law that allows for municipalities to enact moratoria while studying the potential effects of possible land use law changes.

The Binghamton law was unique among the many no-fracking local laws and moratoria enacted across the state.  All of the other municipalities have invoked the power to exert home rule in the determination of allowable land uses within their borders, enacting either a moratorium on such activities for a limited time while the issue is studied, or a permanent prohibition on the activities as inconsistent with the desired community character and mix of land uses within the municipality.  The permanent prohibitions must rest upon a comprehensive plan (or, if no plan is in place, the pattern of previous land use law) in keeping with the exclusion of mining and extractive industries, or heavy industry in general.  Of the many such actions taken by municipalities in NYS, none but Binghamton has attempted to enact a halt to fracking activities based upon non-land-use police powers to protect the health and well-being of residents.

The judge found the City’s line of reasoning unconvincing, and determined that the action was, in fact, a land-use law moratorium.  As per the decision:

Petitioner’s request for a declaration that the statute is invalid because it is a moratorium that does not meet the legal requirements for a moratorium, is a proper question for a declaratory judgement action…. Whether or not Local Law 11-006 is a moratorium is the crux of this case.  It is clear that a municipality can enact laws pursuant to its police powers to protect the health, safety and welfare of its citizens….. The two-year :sunset” renders Respondents’ claims that the law is solely an exercise of police powers illusory.  This activity cannot be so detrimental that it must be banned, but only for two years, particularly when it is clear that the City is not engaging in any investigation, studies or other activity in the interim in order to determine if there is a way to alleviate any harm to the people of the city from this future activity.

Local Law 11-006’s inclusion of a “sunset” provision leads to no other rational conclusion except that this law is a moratorium.

As proper procedures for the enactment of a moratorium were not followed, the law has been struck down.  However, the judge found legal validity to properly-enacted moratoria and prohibitions.  What the decision reflects is that the judge found the action to have taken the form it did as a matter of political expediency– to satisfy some members of the community without alienating others– and the court took issue with the way in which the two-year hiatus on fracking-related activity was instituted.

Were the City to go back and enact a proper moratorium, showing how such an action was warranted and necessary, and seeking comment from the County Planning Department, its own Planning Board, and the neighboring municipalities, a two-year moratorium might, in fact, be upheld.  It is undetermined whether the City will pursue an appeal, or will re-craft the law as a moratorium. The Binghamton Press and Sun-Bulletin quotes a city spokesman as follows:

City spokesman Andrew Block declined on Tuesday to discuss whether the city is planning to appeal the legal decision.“The city looks forward to reviewing today’s decision and continuing to do everything we can to ensure our community’s health, safety and prosperity,” he said.

It should be noted that land use law to exclude mining activities or heavy industry is much easier to enact in some places than others, and not just because the controversy is less heated.  In small rural or residential communities, comprehensive plans (upon which foundation land use laws must sit) typically prioritize residential, agricultural and commercial uses, and may already explicitly limit industrial activities as inconsistent with desired community character. In a gritty, industrial city like Binghamton, heavy industrial uses have typically been welcomed, albeit in zones that are set aside for these uses. Counter-intuitively, the urban areas in which it is clear that industrialized gas drilling would pose the most serious air pollution hazards to large numbers of people may have the most difficulty crafting local land use laws to protect them.

On the broader issues at stake here, however, Broome County Supreme Court added to previous Supreme Court decisions on the matter, making it increasingly unlikely that Home Rule provisions in townships and cities across the state are in any danger of being overturned.  From a press release from David Slotje of Community Environmental Legal Council:

Today, Broome County Supreme Court explicitly adopted the “well reasoned, [and] well founded” decisions in the Dryden and Middlefield cases as its own. Thus the only three NY state judicial decisions specifically considering the matter (Dryden, Middlefield, and now Binghamton) have unequivocally held

(i) New York municipalities wishing to do so have the legal authority to pass local land use laws of general applicability to prohibit gas drilling activities within their municipal borders,

(ii) such local laws are NOT ‘regulations’ within the meaning of ECL 23-­‐0303(2), and

(iii) accordingly such local laws are NOT preempted by or otherwise ‘illegal’ under ECL23-­‐0303(2).

While this decision does overturn a local law, the bulk of the decision argues persuasively that all the other bans and moratoria being enacted across the state are based upon sound legal reasoning.  The moral of this story may be that political conditions in the purported Marcellus Shale “sweet spot” near Binghamton make it difficult to garner support for the kinds of moratoria and prohibitions that have proved successful elsewhere in NY.

Analysis: Is There a Seachange on Fracking in New York?

All along, Governor Andrew Cuomo has contended that he would not make up his mind about whether, where and how fracking was allowed in NYS until all the evidence was in.  A consummate politician who has been practicing the art of policy messaging all his life, Cuomo has frustrated impassioned advocates on both sides with his refusal to meet with them, review their studies and videos, or, in general, talk about the issue at all.  Cuomo is acting just like…. a lawyer or judge when a case is under deliberation.  He’s mum.  So, the activists and journalists speculate about his motives and try to read the tea leaves every time there is an administrative action.  Policy development analysis is doubtless taking place in both the legislature and the administration, but there is little to go on.

However, careful observers have recently noted something of a seachange.  We can be confident, I think, that expectations that any HVHF wells would be drilled in NYS in 2012 or early 2013 are in error– and these expectations were reported as national news as short a time ago as this past August.  What happened?

As much as activists may want to believe that large marches in Albany, endless calls to the Governor’s office, and pledges to engage in demonstrations and civil disobedience if the Governor moved to allow fracking turned the tide, it is very doubtful that Cuomo, a cool, deliberate and disciplined lawyer, would panic and succumb to grassroots political pressure directly.  Our former two Governors, who were more hot-blooded, might well have, but, Andrew is far too calculating and committed to long-term planning and legalistic process for that.  And he also construes his own power and his own leadership as too important.

Instead, I speculate that evidence is piling up in the courts, in Washington, and on Wall St., that changes the calculus markedly.  Here are some ideas about what evidence may be behind a slightly different trim to the sails of the ship of state:

— Chesapeake Energy’s business model is being questioned… by, among others, its own stockholders, some of whom have brought suit.  Fortune has run a number of articles on this, and there are some damning quotes directly from Aubrey McClendon that seem to prove that flipping leases has been a more important component of the plan than selling natural gas.  There is a wider understanding, also, of the “drilling treadmill” that Deborah Rogers discusses in Energy Policy Forum. This line of evidence is very well substantiated by the behavior of the gas drillers in the face of record low prices.  A Saudi Prince, who does not need the money, judiciously stops production when the price tanks.  Continued development in the face of gas prices in the cellar suggests that the confidence in the gas asset in the ground may not be as high as it once was…. and/or that debt service is driving drilling new wells, which then require debt service…

— This squares very nicely with the study from the USGS, indicating that gas in the ground has been massively over-estimated, meaning that in-ground natural gas assets (which the SEC indulgently allows gas companies to estimate for themselves with no oversight) are vastly over-valued.

— And, that squares with evidence that the sounder gas development companies may be re-evaluating the value of their assets.  The recent decision by Anschutz Energy to allow their gas leases in Dryden, NY, to expire, and assign a few of those leases to Norse Energy, a Norwegian company with holdings concentrated in New York, indicates this.  Norse will take over Anschutz’s place in appealing the Dryden home rule case. Anschutz is owned by one of the richest men in America.  If he is folding his hand in Dryden, one could assume that there are no high hopes for prevailing on appeal; or, at least, that the potential HVHF wells in Town of Dryden, which sits only half in the widest version of the Marcellus fairway, will not be worth what it would cost to drill them, even if higher courts reverse the home rule decision.

— The new litigant in the Dryden home rule case, Norse Energy, reframes the nature of the home rule debate.  It is very difficult, from a public perception standpoint, to spin a fight between a small town government and an overseas multinational corporation as having anything at all to do with the US attaining energy independence.  However, the arguments for superceding the rights of municipal home rule all hinge on the greater good of the larger populace.  Pipelines, for instance, can be installed with the approval of state or federal agencies, over the objection of municipalities along the way, based upon the premise that the good of the many in the state or the country is served, even if the good of the few is not.  The good of the investors in Norway– where HVHF is not allowed on-shore– does not fit into the legal construct.

— There has been more careful consideration of the value, or possible negative effects, of converting shale gas importing facilities to exporting facilities in Washington.  Several applications are under consideration. The economic impacts are difficult to model, but, in general, different sectors of the economy would respond differently to the rise in gas price that would likely result from more export facilities.  And, it is unclear how profitable the process of liquifying and shipping the gas would be; where gas is available by pipeline at a shipping destination, it will always be cheaper.  A good article discussing  this, and the impact of home rule and municipal bans, is here.

— Key to raising the gas price enough to even begin to cover the cost of the expensive (even with so many of the costs externalized onto society and the environment) HVHF process is a mechanism for storing the gas, so that production can continue apace while waiting on national or world gas prices to rise.  Unlike oil, it is difficult for large companies or nations to sit on gas and sell only when the price is high.  There are two ways to “store” gas: as LNG in pressurized containers (expensive and dangerous) and in “salt dome” caverns underground (inexpensive and dangerous).  At the one US LNG export facility, in Louisiana, nearby salt dome storage has been easy to construct, as the geology is favorable, and state environmental protections are notoriously lax.  In fact, DEC dSGEIS consultants Ecology and Environment are developing one of these currently.  However, at the moment, there are no storage facilities permitted that are conveniently located for the storage of NY or even PA shale gas.

— However, ideal geology exists in New York’s Finger Lakes region for the development of salt dome storage facilities.  In fact, the DEC, through an administrative law judge, is currently considering whether or not to permit the development of such a facility, using old solution-mining caverns just North of Watkins Glen, NY.  Interestingly, this facility, proposed by Inergy, was presented to DEC and public as not for the purpose of storing natural gas, but, rather for storing LPG, liquid propane gas.  However, it was promoted to potential investors as a key storage facility for the natural gas development in the Marcellus Shale, including for export.

— The administrative law judge at DEC has not, as yet, made his decision, but it is expected soon.  Residents, winery owners, and environmentalists argued before him that the application represented an illegal segmentation of the project– considering only the environmental effects of one part of what would be a wide-ranging project.

— Administrative law judges are some of the few DEC employees that do not need to answer to the Governor’s strategies or political goals.  They have independence to interpret the law as they see it.  It’s just a hunch, but my read of the recent management shake-up at Inergy is that the company may have been denied its permit. The company– and the Governor– might find out about this in advance of a public announcement.

— After nearly a year and a half of refusing to meet with a majority contingent of NYS Wineries that oppose fracking in the state as a negative influence on their growing sector, Governor Cuomo has announced plans to hold a Wine and Beer Summit, along the same lines as his recent Yogurt Summit.

Speculation is always dangerous, but, there is some reason to believe that a tipping point in the evidence may have been reached.