The full significance of last week’s announcement by DEC Commissioner Martens about the decision of the agency to ask the Commissioner of Health to review the SGEIS’s assessment of the impacts of fracking on human health may have eluded most of us.  But, not blogger and author Tom Wilber.  Wilber, a former Gannett reporter from the Southern Tier, has an excellent blog, Shale Gas Review, as well as one of the best books on the Marcellus Shale saga, Under the Surface.  His close and detailed following led him to wonder– and ask DEC spokesperson Emily DeSantis– whether or not DEC would meet an administrative law deadline for issuing its regulations governing HVHF.  For those who may not remember, the DEC issued draft regulations at the same time that they issued the dSGEIS, and held public hearings where they took comments on both documents at the same time.  There is no timeline stipulated by law for the completion of the SGEIS, but there is a deadline by which the agency must issue final regulations, or else begin the process of proposing regulations, and holding hearings for the public to comment, over again.

This is a very significant change, and Wilber is to be commended for figuring this out, and breaking the news.  Here is a quoted section from his blog post, but you really should go read the whole thing.

New York officials crafting policy to regulate shale gas drilling amid unanswered health concerns will likely re-open the process to public hearings, essentially guaranteeing more momentum for the movement that has effectively stalled the industry’s advancement into the Empire State for more than four years.

Emily DeSantis, a spokeswoman for the Department of Environmental Conservation, said late this afternoon that agency officials expect to begin a new rulemaking process rather than try to meet a Nov. 29 deadline to complete a regulatory overhaul. The news comes a week after DEC Commissioner Joseph Martens announced that the agency will turn part of the review over to the Department of Health Commissioner Nirav Shah to address persistent questions about how shale gas development and high volume hydraulic fracturing will affect public health in communities where it is allowed.

“Given that DEC has said no regulations or final decision will be issued until the completion of Dr. Shah’s review, should high-volume hydraulic fracturing move forward, it is expected that a new rulemaking process would be undertaken,” DEC spokeswoman Emily DeSantis said. That process would include at least one public hearing although DeSantis said no timeframes had been made.

DeSantis was responding to my question about whether the DEC would meet a deadline of Nov. 29 to issue policy that would allow permitting to begin. The deadline, outlined in the State Administrative Procedures Act, mandates that new rules must be finalized within 365 days after the final public hearing, or the state must file for an extension.

Other reports on this game-changing new development include Gannett’s Jon Campbell’s blog post, and Ed Sutherland’s piece for the Ithaca Independent.

In the way of analysis, I would add that the relationship between these moves on the part of the administration follow some hints given by Governor Cuomo recently.  Like a good novelist, Cuomo practices some foreshadowing in his administration’s rolling out of a story.  In recent weeks, Cuomo has referred to the probability of litigation, as did Commissioner Martens in last week’s announcement.  These statements followed closely on the heels of the announcement by Kate Sinding of the National Resources Defense Council that a Community Fracking Defense Project was being initiated to offer local communities in 5 states, including NY, legal assistance.

Apparently, as this has become a potential source of national-level litigation, the Cuomo administration has decided to take the time to proceed carefully.



This month’s posts have focused on the moves being made to initiate and prepare for litigation around fracking in NYS.  Today, DEC Commissioner Joseph Martens tacitly acknowledged that the many medical groups that have been clamoring for an independent health assessment may actually have a point.  The published dSGEIS had almost no analysis of any impacts whatever to human health.  While today’s press release sports a headline that emphasizes the portion of the medical groups’ request that was rejected– the assessment being independent of the Governor’s control– the body of the release outlines the importance of performing an entire new review in order to have any chance of the document withstanding legal challenges.

Statement of Commissioner Joseph Martens


“DEC has been reviewing approximately 80,000 comments submitted concerning the Department’s review of high volume hydraulic fracturing (hydrofracking).  While a wide variety of issues are addressed by the comments, many focus on the potential public health impacts of high volume hydrofracking.

I have had numerous conversations with many of the parties on all sides of this issue.  I have recently met with several of the groups who have raised public health concerns and it is clear they are not satisfied with the Department’s effort to address potential public health impacts.  The groups would require that DEC conduct an outside health study that would determine the outcome of the final decision. I reject that demand.  I believe it is highly likely that some of these groups will pursue litigation following the conclusion of the Departmental process if they do not agree with the outcome.

I believe deferring to an outside group or entity would be an inappropriate delegation of a governmental responsibility.  Government is the public’s independent reviewer:  that is the essence of the current process. To suggest private interests or academic experts bring more independence to the process than government is exactly wrong.   Many experts in this field have an opinion – pro or con- which could influence the process.  Nor could one ever be sure that there weren’t potential conflicts of interest with outside consultants if they were to actually direct the outcome.   It is the government’s responsibility to ensure objectivity and a review directed by DEC and the Department of Health is without bias.

The Governor’s instructions have been clear from the outset – let the science determine the outcome.

Fundamentally, I want to make sure that we have done the most thorough review possible, especially when it comes to public health concerns.  In addition, I want to ensure that the Department has the most legally defensible review so that when the Department issues its final determination on this matter, protracted litigation is avoided, whatever the outcome.

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

Only after this evaluation is completed will a decision be made about whether to permit high volume hydraulic fracturing in New York.  Obviously if there was a public health concern that could not be addressed we would not proceed.  The process to date has been designed to maintain public trust in the integrity of DEC’s review, and Dr. Shah’s assessment will assure New Yorkers that we have thoroughly examined all the issues before making a final decision.  The review will also ensure the strongest possible legal position for the Department given the near certainty of litigation, whether the Department permits hydrofracking or not.

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


As per the last post,, there has not been a lot of news from the Cuomo administration on fracking recently.  The closest thing to news was Cuomo’s interview shortly after our “Sound of One Hand Clapping” post, with his favorite reporter, Fred Dicker.  As reported in E&E Publishing, LLC:

Recent news reports that New York’s decision on hydraulic fracturing is imminent appear to be off base….

Gov. Andrew Cuomo, appearing on an Albany radio station, said he feels no pressure to issue a final declaration on whether to permit the drilling practice anytime soon. He denied that a decision has to happen before Election Day or by the end of the year.

“When it’s done, and they’re prepared, that’s when we’ll announce a decision,” Cuomo told WGDJ radio host Fred Dicker on Monday.

Additionally, Cuomo talked with Dicker about the fact that there would likely be a lot of action in the courts– as News Radio 1290 puts it, Fracking Faces Legal Challenges

The governor said the fate of fracking likely will be tied in the courts for an extended time.

Cuomo said the DEC must work to ensure that its proposed regulations are “well grounded” and that they’ll stand up to the expected legal challenges.

Of course, this is the season in which the lawmakers– the legislature– are home in their districts, many of them running for office.  However, the courts are open year-round, and citizens and citizen organizations have access to them whenever they wish to seek redress.  This week, the Environmental Working Group did just that, as reported in the Times Union:

The Washington, D.C.-based Environmental Working Group on Monday sued Gov. Andrew Cuomo and the state Department of Environmental Conservation, claiming they failed to honor the Freedom of Information Law by denying the public thousands of records sought by the group in March.

The suit, filed in Albany County state Supreme Court, claims the DEC and Cuomo’s executive chamber provided only a fraction of the records it requested. The nonprofit asked for materials that would disclose government communications with the energy industry about the state’s deliberations on planning for the controversial method of drilling for natural gas known as fracking.

Cuomo spoke about likely legal challenges following the DEC’s release of a final SGEIS and regulations, but it is entirely likely that lawsuits taking issue with the procedural course followed by DEC may begin even in advance of the release of the regs.  This suit may be just the first of many in that vein.  Today, the Natural Resources Defense Council also announced their Community Fracking Defense Project, which, among other things, will help to “Defend relevant zoning provisions and other local laws that are challenged in court.”
And, of course, there is the possibility of appeal of the Home Rule lawsuits won by the towns of  Dryden and Middlefield, although, despite issuing a “notice of appeal,” gas company Attorney and lobbyist Tom West has failed to “perfect” his appeal, so, currently, no hearings are scheduled.  A very interesting forum, to be held at Albany Law School, will present speakers on these cases, including West and the attorney retained by Town of Dryden to represent it in any appeal hearing, Deborah Goldberg of Earthjustice.

Legal challenges to hydrofracking may also be embedded in existing legal disputes, whether that be disputes challenging the right of gas companies holding leases to invoke force majeur clauses, or even challenges to the rights of town governments to explicitly zone in fracking where those same towns are involved in Indian land claims disputes. Onondaga Faith Keeper Oren Lyons explained, speaking at a celebration at the Onondaga Nation last weekend, that the Onondaga Nation has determined that it will allow no fracking on its lands, and, as he pointed out, “our lands are vast.” At least until after the election, the place to look for NYS governmental actions related to fracking is probably the courts.


In it’s 9/19/12 edition, the Cortland Standard reports that there has been a change in litigant in the Dryden vs. Anschutz home rule case.  Anshutz, a company based in the US, has sold “a few” of their leases to Norse Energy, a gas exploration company based in Norway with extensive leaseholdings in NYS,  but relatively few outside the state.  Norse’s holdings are concentrated in the Chenango County area, and Anschutz told the Cortland Standard that most Dryden gas leases, which they continue to hold, will be allowed to expire.  Attorney Tom West will continue to pursue the case, now working on behalf of the Norway-based company. Explaining Anschutz’s decision to cut its losses and run, rather than stay and fight, West said:

It’s not a friendly environment for natural gas development.  There’s significant “fractivism” and you have unfriendly lower court rulings.

It remains to be seen whether judges will confirm, on appeal, that local municipalities have the right to enact zoning to protect themselves from having their health, community character and economies assaulted by an unwanted industry controlled by foreign companies looking to extract mineral resources and sell them on the world market.  The situation bears an eery resemblance to the long-ago insistence by Northeastern rural communities that they would not abide laws that sent their natural resources across the Northern Atlantic to Europe.  Their resistance spawned the Revolutionary War, and the rest is history…

As summer comes to an end, and children again board school buses, the season brings along its familiar and perennial classics.  There is the NY State Fair, where Governor Cuomo opened festivities accompanied by a couple of hundred anti-fracking protesters. Congressional candidates hit the campaign trail, including, in the Southern Tier, Democratic challengers Dan Lamb and Nate Shinagawa, both of whom are running on explicitly anti-fracking platforms in parts of the 5-county area rumored to be the possible “trial area” for fracking in NYS— where the Governor and some local officials claim that some municipalities favor allowing hydrofracking to go forward.

However, as regards those trial balloons floated in the press earlier this summer about a possible 5-county area where hydrofracking would be allowed on a trial basis, there has been no official word.  In fact, despite a number of journalists’ fevered accounts– from Fred LeBrun’s assured claim that the End of the Anti-Frack World is Near to CBS national news’ unsourced claim that Governor Cuomo had already decided to go forward with fracking and would announce that decision soon– NYS’s Executive Branch has continued, when it comes to hydrofracking, to make the sound of one hand clapping.  Nada. Zip. In keeping with the season, CRICKETS.  LeBrun’s bold claim on August 4

For those desperately hoping against hope that high volume, horizontal hydraulic fracturing for natural gas will be blocked from coming into New York state, sorry. For you, the end of the world arrives before Labor Day.

sounds like Chicken Little by the week after Labor Day.  Cuomo has made many pronouncements on under what circumstances accused sexual harassment perp Assemblyman Vito Lopez should resign, but, on the controversial issue of fracking, he is mum.  The DEC continues to delay the release of the SGEIS, and, in general, the current buzz about fracking from governmental sources continues to be in the indistinct territory of leaks and rumors.

Of course, fracking opponents have been much more overt and on-the-record in their statements and actions, from a march through Albany attended by 1,500 or more protestors on a Monday in late August to the NY Times opinion piece by Sean Lennon, and the organizing, with his Mom Yoko Ono, of 180 celebrities into the group Artists Against Fracking. If the “one hand clapping” in opposition to fracking were any louder, the Governor might have to cover his ears to continue to remain unengaged in the controversy.  Certainly, the briefness of his visit to the Democratic National Convention did not protect him from the protesters, many from within his own party, who dog him at his relatively few public appearances.  And, as the opposition to fracking in NYS ages, it becomes harder and harder to typify that opposition as emanating solely from “environmentalists.”  Organized opposition has come forward from groups way beyond the Sierra Club, such as Physicians, Scientists and Engineers for Healthy Energy, the local elected officials of Elected Officials to Protect New York, and medical professionals joined together to urge caution about the potential health impacts, should fracking go forward in NYS. Opposition is even coming from some professional oil and gas investors, such as Texan (and summer resident of the Cooperstown area) Chip Northrup.  Particularly damaging to the hackneyed framing of the issue as “jobs vs. environment” are recent stock analyst reports that the industry is fundamentally unsound economically, such as Jonathan Verenger on “huge writedowns” in Seeking Alpha and Financial Times references to “the challenging economics of the US shale gas boom – which has seen production surge, but has sent prices plunging, and hit producers’ earnings.”  DEC Commissioner Martens’ claims that NYS would go forward with fracking with a very highly regulated approach are less credible when faced with an industry that is struggling to raise needed capital to continue operations in lightly regulated states like Pennsylvania… and in the face of credible evidence that reserves have been inappropriately overvalued from such sources as the USGS.

If the whispers of Albany insiders are to be believed, this week, the buzz seems to be that it is particularly difficult for the Governor to appear to be recklessly going forward without due considerations of the impact that the industry might have on the health of NYers. While Cuomo’s oft-repeated statement that he will decide based on “the science” can implicitly favor, say, petroleum engineering science over ecological and climate-change science, it is very, very difficult to subjugate the views of the American Academy of Pediatrics to the scientific expertise of the graduates of the Colorado School of Mines.  Recent expectations are that some form of a study on effects on human health are to be announced.

Meanwhile, Governor Cuomo deliberately and consistently keeps himself out of the fray and beyond reach of the controversy.  Even as protestors vow to continue their resistance no matter what decision he ultimately makes, Cuomo continues to deny both sides of the controversy the public, government-backed clash that they continue to anticipate.  While NYC Mayor Bloomberg tries to step into the middle of the fray, averring that both sides are wrong, and fracking is both “too important to foul up” and also too dangerous to do anywhere near the water that his constituents drink…. Governor Cuomo continues to sidestep the issue, enjoying the sweet sound of a clash in which only one hand is clapping.

Governor Cuomo convened a “Yogurt Summit” today to discuss how the state might work with dairy farmers and yogurt manufacturers to grow the industrial cluster in upstate NY.  Several actions were reported at the end of it, including a proposed relaxation of DEC regulations on Confined Animal Feeding Operations (CAFOs).  Currently, farms with 200 or more cows must comply; that threshold is to be raised to 300 or more cows.

Cuomo noted the unique nature of the current opportunity for the state, and encouraged decisive actions.  As reported by Jon Campbell and Joseph Spector for Gannett:

“This is one of the best private sector market opportunities upstate New York has had in 30, 40 years,” Cuomo said in his closing remarks. “I don’t know when we get another one. I really, really don’t. And that entrepreneurial spirit is when you see an opportunity, grab it and make it happen.”

Less widely reported than the proposed loosening of CAFO regulations was an initiative announced by the head of the New York State Power Authority to work with the dairy industry to make it more feasible for dairy farms or groups of dairy farms to sell electricity from methane digestion into the electric grid.  Cuomo indicated that he would have the PSC consider whether laws might need to be proposed to make it more profitable for distributed power production facilities, such as a methane digester, to supply power to the grid.

After the Yogurt Summit, at a press conference, the Governor chose to side-step a question asked as to whether farming and fracking may be incompatible, saying the DEC was still completing their studies.

In the press conference, he stressed the importance of building a positive relationship with the dairy industry, and went on at length about how this industry had felt ignored by state government, and he was happy to be building new and different relationships, breaking with the past.

Cuomo’s decision on hydrofracking regulation is anticipated to be coming soon, following the release of the DEC’s responses to comments on its SGEIS. Farmers make up an important part of the pro-fracking constituency in NYS.  Showing a willingness to amend environmental regulations to aid the dairy industry in capitalizing on the opportunity represented by the growth in yogurt manufacturing might blunt criticism of proposed fracking regulations coming from that quarter.


A controversial interstate gas transmission pipeline project slated to bring PA Marcellus Shale gas to NYC and Boston was sent a directive by FERC that it must consider using existing pipeline routes instead.  The Oneonta Daily Star attributes the unremarkable suggestion that the developers first consider colocation with existing pipelines, or just running the gas through the existing piplines, to anti-fracking activist Ann Marie Garti:

The suggestion of having the Pennsylvania shale gas reach the Eastern Seaboard through existing pipes had been made to FERC last month by a Constitution Pipeline opponent, Anne Marie Garti of East Meredith. She said she believes the project is unnecessary and would end up taking in gas from hydrofracked New York wells. The pipeline planners have repeatedly said the latter scenario is not under consideration, insisting the system is for gas from Pennsylvania.

UPDATE: Governor Cuomo was in Syracuse today, trying to diffuse some of the speculation about what “the plan” for fracking NYS will be. quotes him as not yet decided:

Gov. Andrew Cuomo said today in Syracuse that no decision has been made on whether to allow hydrofracking in New York.

“We’re waiting for DEC to finish its final report and regulations,” Cuomo said, “and that hasn’t happened yet.”

So, perhaps some of the stories about 50 to 100 wells being permitted sometime next year belong in the category of more “trial balloons.”

The rumors are beginning to build about the expected release of the Governor’s/DEC’s plan for fracking in NYS.  Recently, it was reported that “environmental groups” were being briefed on plans– in response to a hubbub that ensued when FOILED documents indicated that the DEC had been meeting with industry groups in advance of releasing its draft SGEIS, but not environmental groups.  Fred LeBrun, a reporter for the Albany Times Union, purported to have some leaked information, from said environmental groups, which he published under the headline “End of the Anti-frack World Near.”  Never mind the parochialness (in fact, worldwide, more nations are choosing the “anti-frack” option) the article may even be overstating things from a purely Capital District of NY perspective:

For those desperately hoping against hope that high volume, horizontal hydraulic fracturing for natural gas will be blocked from coming into New York state, sorry. For you, the end of the world arrives before Labor Day.

Top state officials are in the process of briefing selected environmental groups on a plan to be publicly released in a couple of weeks.

More objective journalists have been less hyperbolic about the plan to be released in the near future, how “final” it is, and when and whether it would result in any companies applying for any permits to frack any time soon.  For instance, Tom Wilbur, a former Gannett Binghamton reporter who has recently had a book published about the NYS fracking fight, says this:

I have since heard different assessments from anti-fracking camps familiar with aspects of the plan. Contrary to the thrust of LeBrun’s report –- that the Cuomo plan marks the beginning of the shale gas era in New York — some anti-frackers see Cuomo’s approach as a victory because it ultimately depends on involvement from the legislature. A primary monkey wrench, according to anti-fracking activists, will be a battle over funding -– never a sure thing in Albany and subject to even more uncertainty when it comes in the form of a controversial issue in the hands of partisan lawmakers. One advocacy group, Gas Drilling Awareness of Cortland County, advised members on its website that Cuomo’s plan “requires budget and legislative action … in the next legislative session delaying a final decision into 2013.” As reported by Jon Campbell of Gannett, state estimates show the Department of Environmental Conservation will need to come up with an average of $20 million each of the next five years to regulate the natural gas industry.

The certainty of any endeavor that requires NYS’s fractious legislature to agree to five years of $20 million-a-year funding seems unlikely….. especially given the fact that the upcoming election could return control of the Senate to Democrats.  The NYS Senate’s Democratic Caucus is staunchly anti-fracking.

One of the most interesting tidbits of leaked information is that “green completions” would be required.  This rather technical issue has, in my opinion, great potential to make most of NYS extremely unlikely to ever see fracking, even were it technically permitted.  A “green completion” is a situation in which the feeder pipelines are in place prior to the fracking of a well, so that no methane is vented to the atmosphere, or “flared” (burnt) causing other emissions and greenhouse gases.  In reality, many gas wells end up being dry holes, even after fracking. If the industry must build pipelines to wells in advance of knowing whether or not those wells would produce, it will have costs in NYS far above the costs it would have in, say, Ohio or Pennsylvania.  Not that this should make Broome County residents feel secure– the areas directly adjacent to Bradford County, a “sweet spot,” and near the already-completed Millenium Pipeline, would likely be worth the gamble to the gas companies.

Which, according to the leaks, is exactly where the first permits are anticipated to be issued…. if and when the Legislature agrees.  Assemblywoman Donna Lupardo, who represents the area, does not consider it a done deal at all, according to Wilbur, writing in his blog:

“There are a lot of issues that have to be worked out, and there are many of my colleagues who are not comfortable with fracking,” said Lupardo, who predicted the fight over funding would be “epic.”

And, then there is that little issue of the local bans and moratoriums that are popping up like mushrooms all across NYS.  Fred LeBrun published some misinformation on that in the Albany Times Union recently, too.  Even Wilbur is a little fuzzy on this, noting that “the industry” has filed a “notice of appeal.”  In fact, the decisions in Dryden and Middlefield have NOT been appealed…. the “notice” keeps the option to file an appeal open while Tom West, the lawyer that represented the plaintiffs (only one of which was a gas company) try to sell the right to appeal to others.  Because, they do not intend to appeal the decisions.  LeBrun has somehow mistakenly seen this as an appeal being expected to reverse the decisions any day now.

Meanwhile, the highest courts in the state will have something to say about the fracking schedule. While not making much of an issue of it, the DEC as it goes forward by the end of the year with its fracking regulations is tacitly assuming the final word will not be in favor of home rule. Currently, two state Supreme Court decisions have awarded the localities the right to ban fracking activities if they wish. That is being appealed in a mid-level court, and we should see that decision any day. Then, no doubt, considering the stakes involved, the entire debate will ascend to the Court of Appeals, probably on an expedited basis, and it will be a delight to see what the last word is. I believe home rule has a very good choice of prevailing.

If that is the case, both the governor and drilling industry will have themselves a big problem in expanding hydrofracking to anywhere near the scale they’d ultimately like.

LeBrun is assuming a lot (and correcting his published errors not at all).
This fight, according to my read, is very much still undecided.

In breaking news, the Pennsylvania Commonwealth Court, in a 4-3 opinion, has decided that the recently-enacted Act 13 does not pass constitutional muster.  The text of the opinion is posted on Representative Jesse White’s web page.

This is a key decision, and will be scrutinized for its legal arguments about state usurpation of community rights to determine what kind of industrial development will or will not take place in their borders.  New York State’s home rule tradition is more robust than PA’s, and precedents relating to mining have been set.  Still, this decision will impact NYS by providing yet more precedent.

Senator Avella is holding a forum in response to the FOIL revelations that the gas companies received special, pre-public-release documents, and a chance to weigh in ahead of public release, in apparent collusion between regulators and those that they supposedly regulate.

Here are the details:

Wednesday, July 18th
10:00 am
250 Broadway, New York City

Invited testimony includes many scientists…. but all citizens are welcome to attend or send in written comments.

A news story on this is available at NY 1.

“I don’t believe they should be given advance notice, they should given information that wasn’t given to the rest of the public or that they should have the ability to comment and potentially change those draft regulations,” said State Senator Liz Krueger.

UPDATE: Here is an invitation, with a link to live coverage, from Senator Avella.

Hydrofracking Forum Live Tomorrow!

Dear Friend,
Tomorrow my Democratic colleagues and I will be hosting a public forum to bring advocates, members of the community and elected officials together to call for a further investigation into the dangerous process of hydraulic fracturing (also known as “hydrofracking”).  I wanted to let you know about this because we will also be streaming video of the forum live so that you can watch and hear all of the environmental panelists and testimony in real time.
Hydrofracking is a process by which natural gases are extracted by an unregulated process of drilling which can lead to grave health and seismic impacts.  Recently the state has taken some alarming steps toward allowing this hydrofracking process to take place without thorough studies.  Additionally, there are recent allegations of wrongdoing and a federal probe to investigate the companies that seek to drill here in New York and could end up affecting our drinking water right here in New York.
Throughout the legislative session, we brought several hostile amendments to the floor of the Senate and held several press conferences and forums similar to this one in the hopes that the Senate Republicans would stop kowtowing to the monied special interests at the expense of New Yorkers’ safe drinking water.  Join us live tomorrow at 10:30AM at  You can also follow updates live via our Twitter account and ask any questions at @NYSenDems.
Thank you for your continued support.
Senator Tony Avella

In recent interviews, Governor Cuomo has first seemed to accept the right of municipalities, under Home Rule, to prohibit hydrofracking within their borders, and then sort of equivocated about what he really meant.  Under the headline “Cuomo hints at support for fracking home rule” the Elmira Star-Gazette quotes the Governor’s interview on New York Public Radio thus:

“I think it’s inarguable that one should take into consideration home rule, and if you have communities that have an expressed desire to proceed, I think that should be taken into consideration if you decide to go down this road at all,” Cuomo said. “Obviously, if a community says that they oppose it, that should be taken into consideration.”

However, by the next day (today), there were reports that some “tweaking” was taking place– Jon Cmpbell writes about it under the headline “Cuomo Revisits Hydrofracking ‘Home Rule’ Comments”:

One day after saying it’s “inarguable” that “home rule” should be considered during the hydrofracking permitting process, Gov. Andrew Cuomo today tweaked his statement a bit, calling it “relevant, but not necessarily determinative.”

Cuomo was asked about hydrofracking following a news conference today…

He continued: “Home rule is one of the basic, essential elements of our democracy. If DEC said, you can do this, you can do it safely, we have the initial discussion and we’ve made the decision on the first fork in the road, then I believe home rule is relevant. Is it necessarily determinative? No. But is it relevant? Yes.”

Cuomo was then asked if—assuming the DEC allows the technique—he supports a floated plan to allow a limited number of permits in five counties near the Pennsylvania border, he declined to weigh in.

“I don’t really want to talk about if you get past the first ‘if,’ ‘because…’” he said. “Let’s have a discussion on the facts, because you could say, yes we’re going to go ahead, but DEC could say, yes but, with the following conditions.”

Given past experience, those conditions might include things like high-paying jobs in the industry for all the DEC officials that obfuscated sufficiently to let the controversial technique be used in NY.  But, any way you look at it, Cuomo is not using the clear and unambiguous language of, say the NYS judges who ruled on the home rule cases in Middlefield and Dryden.  One could be wary that any locution that required so much parsing was, in fact, hiding some kind of unpleasantness.

My take is that the “unpleasantness” is environmental justice related: wealthy and powerful suburbs with plenty of planners, lawyers and clout will receive “consideration” of their communities’ wishes to keep their quality of life and property values intact.  Poorer, more Appalachian places will be judged by the state to have done a poor job at explaining why they have anything worth protecting, and the state will “determine” that these less powerful people get fracked, and lose what little they have in the way of quality of life or equity in their homes.  Our forefathers called this kind of governmental “consideration” tyranny, and endeavored to build a democracy where the rights of all would be honored.

Meanwhile, a new and important scientific study, published in the Proceedings of the National Academy of Sciences of the United States of America, states clearly that there are pathways by which fracking can contaminate drinking water aquifers.  The study’s abstract is quoted below.  Beware the potential destruction of the watery lifeblood of the places rural poor people live and farm!

Geochemical evidence for possible natural migration of Marcellus Formation brine to shallow aquifers in Pennsylvania

  1. Nathaniel R. Warnera,
  2. Robert B. Jacksona,b,
  3. Thomas H. Darraha,
  4. Stephen G. Osbornc,
  5. Adrian Downb,
  6. Kaiguang Zhaob,
  7. Alissa Whitea, and
  8. Avner Vengosha,1

+ Author Affiliations

  1. aDivision of Earth and Ocean Sciences, Nicholas School of the Environment, Duke University, Durham, NC 27708;

  2. bCenter on Global Change, Nicholas School of the Environment, Duke University, Durham, NC 27708; and

  3. cGeological Sciences Department, California State Polytechnic University, Pomona, CA 91768
  1. Edited by Karl K. Turekian, Yale University, North Haven, CT, and approved May 10, 2012 (received for review January 5, 2012)


The debate surrounding the safety of shale gas development in the Appalachian Basin has generated increased awareness of drinking water quality in rural communities. Concerns include the potential for migration of stray gas, metal-rich formation brines, and hydraulic fracturing and/or flowback fluids to drinking water aquifers. A critical question common to these environmental risks is the hydraulic connectivity between the shale gas formations and the overlying shallow drinking water aquifers. We present geochemical evidence from northeastern Pennsylvania showing that pathways, unrelated to recent drilling activities, exist in some locations between deep underlying formations and shallow drinking water aquifers. Integration of chemical data (Br, Cl, Na, Ba, Sr, and Li) and isotopic ratios (87Sr/86Sr, 2H/H, 18O/16O, and 228Ra/226Ra) from this and previous studies in 426 shallow groundwater samples and 83 northern Appalachian brine samples suggest that mixing relationships between shallow ground water and a deep formation brine causes groundwater salinization in some locations. The strong geochemical fingerprint in the salinized (Cl > 20 mg/L) groundwater sampled from the Alluvium, Catskill, and Lock Haven aquifers suggests possible migration of Marcellus brine through naturally occurring pathways. The occurrences of saline water do not correlate with the location of shale-gas wells and are consistent with reported data before rapid shale-gas development in the region; however, the presence of these fluids suggests conductive pathways and specific geostructural and/or hydrodynamic regimes in northeastern Pennsylvania that are at increased risk for contamination of shallow drinking water resources, particularly by fugitive gases, because of natural hydraulic connections to deeper formations.

Solid Shale Mission

--To provide timely and accurate information to New York State citizens and citizen groups about government processes and activities pertaining to natural gas exploration by hydrofracking in the State.
--To provide a forum, in the comments section, for citizens from all over New York State to comment on and deliberate about possible responses to government processes and activities, which they might undertake together or individually.

DMCA Notice (Copyrighted Material)

© Krys Cail and Solid Shale, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Solid Shle with appropriate and specific direction to the original content.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 77 other followers