Suffolk County Legislators Sponsor Bill To Prohibit Treating Frack Flowback Water in Public Waste Water Treatment Facilities

When the DEC drafted its SGEIS on hydraulic fracturing, it identified some potential locations at which the toxics-laden waste water from the process might be “treated” and released back into the environment.  In particular, Suffolk County’s Bergen Point Sewage Treatment Plant in West Babylon was identified as a potential accepting point for flowback fluid from the fracking process.  As this plant releases “treated” water to the Atlantic Ocean, it would be very difficult to record high levels of toxins or radioactivity in the water body after the inadequate “treatment” of the fracking waste.  What other possible reason would there be to truck the waste to Long Island, far, far from the Marcellus Shale, and near, near to many people?

Well, there is also environmental racism. West Babylon is home to one of Long Island’s densest population of black people.

Regardless the reason that DEC may have considered West Babylon’s Bergen Point a good place to bring frack waste, a pair of Suffolk County lawmakers wants to pass a local law to make sure that it doesn’t happen.  Suffolk County Legislator Kara Hahn (D-Setauket) and Deputy Presiding Officer Wayne R. Horsley (D-Lindenhurst), have announced that they have filed a bill that would prohibit the acceptance of fracking waste at any Suffolk County Waste Water Treatment Plant.

“It dumfounds me how anyone could think such an  environmentally sensitive area like Long Island, and specifically Suffolk County, would be a good place to bring the toxin filled
wastewater produced by hydrofracking,” said Legislator Hahn. “Our facilities are not equipped to deal with the kind of chemical concoction used at these sites and would ultimately result in this waste being untreated and discharged directly into the Atlantic
Ocean.”  …. “To think that Bergen Point on the Great South Bay is a viable dumping site for wastewater produced from Hydraulic Fracturing is simply unconscionable,” said Deputy Presiding
Officer Horsley whose district includes the treatment facility.

The measure will be introduced at the Suffolk County Legislature’s next meeting, March 13.

Middlefield Home Rule Case Decided– Local Zoning Upheld, Plaintiff Denied

Acting Supreme Court Justice Donald F. Cerio, Jr. has handed down his decision on the Otsego County case of Cooperstown Holstein Corporation vs. the Town of Middlefield, upholding the right of the municipality to keep its zoning, which excludes hydrofracking.  The idea of  “supercession” that gas companies postulated barred localities from enforcing such land use laws in the case of gas drilling suffered its second judicial defeat this week.  To quote the decision in favor of Middlefield:

Therefore, it is evident that the supercession clause included in ECL 23-0303(2) does not serve to preempt a local municipality such as defendent from enacting land use regulation within the confines of its geographical jurisdiction, and, as such, local municpalities are permitted to permit or prohibit oil, gas and solution mining or drilling in conformity with suchconstitutional and statutory authority.

UPDATE: News coverage begins in Oneonta, and echoes back from across the US and even Britain.  Link to the decision itself also below.

http://thedailystar.com/breakingnews/x1875165986/Middlefield-wins-home-rule-case-in-court

http://uk.reuters.com/article/2012/02/25/usa-newyork-fracking-idUKL2E8DP00220120225

http://abcnews.go.com/US/wireStory/ny-court-decision-bolsters-anti-fracking-movement-15767819#.T0gvLXpdA14

http://www.capitaltonight.com/2012/02/another-win-in-court-for-anti-fracking-groups/

http://www.scribd.com/doc/82732762/Middlefield-decison

Will Anschutz Pursue a Separate “Takings” Lawsuit Rather Than Appeal Loss in Dryden Lawsuit?

UPDATE: Since this post was written, Anschutz lawyer Tom West has indicated that the lawsuit in Dryden probably will be appealed, and backed off of the spurious takings claim.  Explained well here.

 

The response to yesterday’s court decision (see previous post) in favor of Town of Dryden in the Home Rule case has been varied.  Many drilling proponents– and many reporters– have simply assumed that the case would be appealed.  However, the gas company that brought the lawsuit has said that it is considering its options, and will not decide whether or not to pursue an appeal immediately.  An article in today’s New York Times seems to suggest that they are considering other options, as well, including perhaps substituting a lawsuit based on an entirely different premise, that of a governmental “taking” of private property.

The Dryden case, however, is sure to prompt further litigation. Thomas West, the Albany lawyer representing Anschutz, said the company might appeal or instead pursue a “takings” claim against the town — based on the principle that private property should not be taken without just compensation. Mr. West said the company had spent more than $5 million securing land leases from Dryden property owners and could claim the lost value of its assets, including any profits it would have derived from exploiting the mineral rights under the land.

In general, courts have held that it is not considered a “taking” when governmental actions such as zoning designate property as usable for certain uses but not others.  The classic example is residential versus commercial use; when a property is rezoned to allow only residential use, rather than commercial, there is usually a loss of value.  However, the courts have held that, as long as there is the capacity for the property owner to make some economic use of the property (such as building a home), a taking has not occurred.  It is only when there is no viable economic use left for the property owner that it is construed that it is the responsibility of the governmental unit to compensate (buy out) the property owner for the prior value of the property.

However, there is a well-funded effort to attempt to move the law on governmental takings away from prior jurisprudence, in order to effectively nullify much environmental regulation.  An excellent treatment of this topic can be found at the Community Rights Council website.  Their paper, “The Takings Project: Using Federal Courts to Attack Federal Protections,” outlines the organized effort to hamstring environmental and community laws protecting health and the environment by requiring those governments to compensate irresponsible landowners for any and all money they would have made by sacrificing that environment.  This is a radical right-wing view, supported by very conservative forces.  As explained by Community Rights Council:

Enter Professor Epstein. In a theory first articulated in the late 1970s and, with a grant from a conservative foundation, printed in book form in 1985,17  Professor Epstein posited that the Takings Clause could be used as a tool to implement the Reagan administration’s crusade against federal regulations. Put another way, Epstein theorized that the Takings Clause renders unconstitutional any and all redistributions of wealth, and thus renders “constitutionally infirm or suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers’ compensation laws, transfer payments, [and] progressive taxation.”18 

Professor Epstein’s thesis is simple enough to describe. He contends that there is a natural right to property ownership, and that, based on the philosophy of John Locke, the government has only a very limited right to interfere with such ownership. Property ownership, in turn, consists of a bundle of rights, of which possession, use, and disposition are the most important. Any governmental interference with any of these rights, Epstein asserts, is a taking that must be compensated — “no matter how small the alteration and no matter how general its application.”19 

To reach his result, Epstein suggested that the Supreme Court should revise then-standing precedent in several critical ways….

Thus far, Professor Espstein’s full laundry-list of prohibitions on governmental actions has not been supported by the courts, but, there has been some erosion in the capacity of governments to enact laws for the good of all that impact a particular property owner negatively.

This is one to watch.  Not clear whether the intent– if a takings lawsuit is initiated– would be to maintain an intimidating presence in the short run, so that town boards across the state are too frightened to enact zoning that prohibits gas exploration and mining, or if there would be an intent to actually try to force the Takings Project agenda forward in the New York State courts, hoping to appeal to the Supreme Court to make changes in the basic precedents that set the parameters for governmental actions to protect the people and the environment.

Breaking News: Town of Dryden Wins Court Case on Home Rule

We have just received word from a reliable source that Judge Philip R. Rumsey has ruled in favor of the Town of Dryden in the lawsuit filed by Anschutz Exploration Company against the town.  Dryden has used its home rule power to limit land uses within its town to those in its Comprehensive Plan, excluding the mining of oil and gas.

More about the case can be read here.  It is anticipated that the verdict will be appealed.  This post will be updated as more information becomes available.

UPDATE:  A link is now available to Judge Rumsey’s decision.

There is also a story at Politics on the Hudson that quotes Tom West, the Anshutz lawyer, as saying that they will decide whether or not to appeal within 30 days…. and that “We certainly believe that if this case goes up to the Appellate Division, that the appellate courts will, we think, find some of the legal arguments we’ve put forth to be persuasive.”  Local coverage at the Ithaca Journal, too.  And at Ecowatch.

Journalists, Writers and Filmmakers Influence Public Discourse

The public confrontation, controversy and conversation about fracking has been going on for a while here in New York.  We have gotten to the point now where it is possible to write a book review on several books, a newspaper article series, and an Emmy-award-winning movie.  That’s what Bill McKibben has done here in the New York Review of Books; you really should go read the whole thing.

A different level of public understanding evolves when a controversial issue remains unresolved long enough that books, article series, and movies are created to help explain.  This has become a Topic about which engaged citizens might become informed.  Something that different journalists and authors see from different perspectives.  Amid all the gas company paid spin, there is more and more effort being made by writers, filmmakers, and ordinary citizens to better understand what is going on.  This is the very process of public democracy that became popular during the American Revolution and the years following– vigorous public discourse, with information provided to a newly literate population by a truth-seeking Fourth Estate.

From McKibben’s review, we learn that the full story is better understood by seeing from more than one perspective– the views are complementary–

The accounts in these two books are complementary. McGraw is the better writer, and because he grew up in the region he has a better story to tell; he describes believable characters and provides a perceptive account of what rural poverty feels like. Wilber is the better reporter; he covered the shale story for the Binghamton newspaper for years, and grounds it in the setting of both Pennsylvania and New York politics.

The two books, however, don’t manage to cover some important aspects of the fracking issue. In fact, the most remarkable work on the subject has been done by Ian Urbina, a New York Times journalist, and by the rebel filmmaker Josh Fox. Urbina’s stories, which seem likely to win a Pulitzer, demonstrate why we can’t do without serious newspapers.

For real democracy to work in a state, the people and the lawmakers must have… truthful accounts and serious newspapers.  Movies often change the narrative.  Gasland, as movies often do, had an outside effect on public opinion, by changing the way the story of gas drilling was framed.  Gasland II is currently being filmed, and will come out this year.  It will be interesting to see how the film, which will include footage of NYS Senator Greg Ball’s trip to Pennsylvania to investigate fracking, impacts the NYS political discourse on the topic.

 

Hazardous Waste Bill– A7013– Passes Assembly Again This Year

The first bill of the season to be voted on, as pertains to fracking, is the Hazardous Waste Bill, A7013.  The bill look-up website has note yet been updated with this year’s vote, which included “yeas” from all Democrats present and 6 Republicans, too.  30 Republicans voted against it– down a bit from the 35 that voted against it last year.

This bill is important whether fracking ever begins in New York State or not, as hazardous waste from other states is trucked into New York.  Perhaps there will also be some movement in the Senate.

Is Current DEC/EPA Regulatory Structure Sufficient for Current Hydrofracking Practice?

Recent research and events have called into question how effectively the federal government (through the EPA and DOH) and the various state environmental protection and health agencies (the DEC and DOH in NY) are handling their responsibilities to keep the environment and the population safe and healthy.  This is shown in relation to shale gas by the agencies both not gathering data that would show a need to intervene, and also by recording incidents, but not following up on potential environmental or human health impacts in the area of the incident.  In states like Pennsylvania, regulators may also have few enforcement options, instead making recommendations after incidents that gas companies are free to ignore.

On the federal level, there is political pressure exerted to limit the influence the EPA has in the ordinary conduct of the nation’s business. In campaign debate, there is the open suggestion that the agency might be eliminated if particular candidates were elected.  Whistleblowers document that they were curtailed in their investigations due to political pressure on administrators.

At the state level, the combination of persistent staff cutbacks and increasing complexity of technology involved in resource extraction make it a real challenge for the state agencies to keep up.  In New York, we also face an environmental protection agency which, in the case of mineral resource extraction, has the odd and internally inconsistent role of both protecting the environment and maximizing mineral recovery.

Sometimes, it has taken the persistent attempts of advocacy groups to get information about oil and gas companies out in the open– especially information about discharges, accidents and spills.  The public has to rely on advocates to pry such information from DEC as that fracking “brine” has been used as a substitute for road salt, and where it was so used.

The general level of trust in these governmental watchdogs has gone down in some quarters, particularly in regard to the health impacts associated with fracking.  Independent health study results may measure health impacts that federal and state governmental agencies seemed willing to ignore.

Is it, therefore, any wonder that, when odd symptoms start to surface in the student population of a school with six gas wells on the school property, people begin to doubt whether or not the agencies charged with considering whether or not there is an environmental condition that impacts student health are doing an adequate job?  Many seem convinced that fracking played a part in the LeRoy Middle and High School epidemic of Tourette’s Syndrome-like symptoms.  The school district is providing some information, but not allowing independent third parties to take soil or air samples.  The location of the plume from an accident near another drill site a few miles away is an issue– and they provide a map of the plume and where the new monitoring wells are to be located.  Another issue is the brine spill recorded on school grounds just a month and a half before students began to exhibit the unusual tics and outbursts– and that seems to have killed a number of trees on school grounds.

It is difficult to make a decisive statement about the causes of the students’ symptoms without more information than has been made public to date.  However, the fact that the DEC, EPA and NY DOH have all looked at the situation is not appearing to give many people a secure feeling about it.  There is a nagging sense that our public watchdogs may not be robust enough to tackle the task of protecting us.

Seachange– Shale Gas Economics and Local Opposition to Fracking Redefine Political Landscape

There is a different attitude about hydrofracking starting to emerge from state lawmakers and even the Governor.  In a New York Times story under the headline After Early Gallop, Albany Slows to Crawl in Making Decision on Gas Drilling, journalist Myrea Navarro notes the change from last year’s apparent “fast track” movement toward issuing permits to drill:

But now, a decision on the process, known as hydrofracking — its scope, its timing or whether it will happen at all — seems much more uncertain, and the approval process has slowed considerably despite almost four years of study, debate and intense lobbying on both sides of the issue.

Mr. Cuomo did not mention hydrofracking in his State of the State address last month, and did not provide money in his proposed budget for the 2013 fiscal year for regulating the new industry.

The change can certainly be attributed in part to the very vocal and creative opposition to hydrofracking, which also helped to produce a record number of comments to the DEC on the dSGEIS document.  In particular, the municipalities that have been passing bans and moratoria at the local-government level have made state legislators, who answer to the same local voters, sit up and take notice.  A map made by Karen Edelstein that shows the current extent of municipal-level bans, moratoria, and other related actions in New York State can be viewed here.

The degree to which the mood in Albany has changed since last year can’t be explained only by stalwart citizen activists, persistent environmental advocacy groups and alarmed municipal officials invoking home rule, however.  The economics also changed, and state legislators pay a lot of attention to economic issues in these difficult times.

Navarro quotes an environmental organization leader and a Southern Tier legislator on this in her NY Times article:

Robert Moore, a panel member and executive director of Environmental Advocates of New York, said the costs of minimizing hydrofracking’s risks had become a bigger issue now that some gas companies have gone into a retrenchment in response to the glut of natural gas. The industry would ultimately be responsible for the fees and taxes necessary to defray the costs of hiring and training state regulatory workers.

“With gas prices being what they are, it’s unclear what profits can be made,” he said. “If there’s no profit, there’s no tax revenue.”

Another panel member, Assemblywoman Donna A. Lupardo, a Democrat from Broome County, said, ‘It all boils down to two questions: what level of risk are we willing to accept, and at what cost?’ “

As the government agencies, such as the US Geological Survey and the Energy Information Agency, that are charged with giving the “official” word on reserves slash their previous estimates of technically recoverable reserves by as much as 80%, and gas prices reach unprecedented lows below $2.50 per thousand cubic ft., it becomes harder to believe that shale gas drilling in the Marcellus in NY will be profitable.  Without the glitter of potential big money to be made, fracking is not so attractive a proposition in the state capital.

For an excellent analysis of the current business and financial situation that Marcellus Shale gas companies find themselves in, check out Deborah Rogers, who has come up North from her Fort Worth, Texas home to do a speaking tour of New York State.  Ms. Rogers’ presentation in Binghamton is available on video, or listen to her radio interview with Susan Arbettor here.  Her work is also available on her blog.

There is a new awareness in Albany on the fracking issue, and it is not just a clearer understanding of the environmental risks– it is also a changed perception about the strength of the business case for shale gas exploration in New York.

Speeches, Hearings…. and Even an Arrest

In January, many were pleasantly surprised that Governor Andrew Cuomo did not discuss hydrofracking in his State of the State message…. and then unhappily surprised when President Barack Obama discussed it at length in his State of the Union speech– although NYS fracking proponents were encouraged.  UPDATE: NY Congressman issues statement: Hinchey, DeGette and Polis Call on President to Endorse Stronger Protections from Hydraulic Fracturing, More Study

Early February has seen a hearing held in Washington by the House Committee on Science, Space and Technology, Chaired by Representative Ralph M. Hall.  This hearing was a follow-up to the presentation of EPA Draft Findings in their investigation into the water problems in Pavillion, Wyoming (they concluded that the water problems are “probably” due to the fracking in the area).  Josh Fox, the filmmaker who made the film “Gasland,” attempted to attend and videotape the proceedings at the hearing, at which gas industry scientists only had been invited to speak. The Chairman of the Committee had him removed from the chamber in handcuffs. The story of his arrest, and what he believes it means about Congress conducting its affairs in compliance with the First Amendment to the Constitution, is well-stated in this television interview (the Ed Show).

Sandra Steingraber, a biologist and environmental activist, also published a statement in response to Josh Fox being led out of the Capital in handcuffs.  That statement is here.

Meanwhile, there is a public hearing on the New York State Budget planned for next week– all day Tuesday, Feb. 7. If you are in the Albany area, you might want to attend and let your state government know your views.

What Does the US Energy Information Agency (EIA) New Marcellus Shale Gas Estimate Mean for NY?

When the USGS published a drastically reduced estimate of undiscovered but technically recoverable gas in the Marcellus Shale, the EIA said it would adjust its figures.  It has done so, as reported in Upstream Online :

In its 2012 Annual Energy Outlook, released on Monday, the EIA puts the amount of unproved technically recoverable shale gas resources in the US at 482 trillion cubic feet, almost 42% less than its estimate of 827 Tcf a year ago.

“The decline largely reflects a decrease in the estimate for the Marcellus shale, from 410 trillion cubic feet to 141 trillion cubic feet,” the agency said in an early overview of it annual projection of energy markets through 2035.

The assessment of Marcellus resources was made with more comprehensive well data available due to the vast number of wells drilled in the past couple of years.

Despite the lower projections of available gas, the agency still expects US gas production to increase, keeping prices low.  As reported in the Pittsburgh Post-Gazzette :

The daily rate of Marcellus production doubled in 2011, but that development yielded new data giving what the department’s Energy Information Administration says is the truer — or at least latest — indication of how much recoverable gas awaits drillers signing leases in the region.

Despite the lower estimate, gas production in the United States is still expected to grow, lessening America’s dependence on energy imports and keeping natural gas prices at profit-busting lows.

Nationwide, shale gas production is expected to increase from 5 trillion cubic feet in 2010 to 13.6 trillion in 2035.

Gas is now trading around a decade-low $2.30 per thousand cubic feet, and the EIA expects it to remain below $5 through 2023.

That’s sorry news for drillers already trying to figure out how to justify rapid-fire drilling in a market that doesn’t promise quick profits.

The lower gas prices — coming at a time when oil values are rising — have led to major company portfolio changes in just the past week.

So, what do these changes mean for New York State?  One thing to keep in mind is that, with prices low, companies are expanding production in areas with “wet gas” (gas with other liquid petroleum products also present) rather than “dry gas”– what is expected to be available in New York State.