The New York Department of Environmental Conservation (DEC) has released its Supplemental Generic Environmental Impact Statement (SGEIS) — the next step towards achieving a ban on hydraulic fracturing in New York.  Unsurprisingly, the SGEIS fully endorses the health impacts report released last December by the New York Department of Health, which as EID exposed, contains “science” that has been seriously called into question or outright discredited.  EID subsequently released a whitepaper, which found that many of the studies used to bolster the New York’s fracking ban were written, peer-reviewed or funded by well-known anti-fracking activists who did not disclose their bias.  Failing to disclose bias, by the way, violates at least four different codes of conduct for scientific research.

With the release of the SGEIS, it’s worth looking back over this seven year process in New York to understand how the state got to the point of using activist “research” to justify a ban on fracking.

DEC initially employed sound science to create draft regulations

The review of New York’s hydraulic fracturing regulations began in 2008 at the request of then-Governor Patterson.  In September 2009, the DEC released its first version of the SGEIS, called the Environmental Impact Study (EIS). The rules put forth in this document were even acknowledged by critics of natural gas development as being “more stringent…than in other parts of the country.”

The EIS set “strict rules on where wells can be drilled and requires companies to disclose the chemicals they use” and did not ban development near the New York City or Syracuse watersheds. In fact, as the New York Times reported, DEC said that “it found no reasonable basis for a drilling ban near the watershed, but that measures were necessary to allay concerns raised last year in public hearings.”

Following another public comment period, a new draft SGEIS was issued in 2011. This version did instate a ban on development in the New York City and Syracuse watersheds, despite DEC’s 2009 statements that there was “no reasonable basis” for doing so. However, it noted that if New York adopted strict rules, the risks of fracking would be effectively managed:

“These recommendations, if adopted in final form, would protect the state’s environmentally sensitive areas while realizing the economic development and energy benefits of the state’s natural gas resources.”

The 2011 SGEIS described the economic impacts of development at length, which included the potential for 54,000 new jobs and $2.5 billion in economic activity annually throughout the state. Senate majority leader, Dean G. Skelos said in a statement to the New York Times:

“Safe drilling for natural gas has the potential to create thousands of new jobs and millions of dollars in economic investment.”

Even Governor Cuomo acknowledged the windfall this could be for the Southern Tier in his campaign:

“The economic potential from the Marcellus Shale could provide a badly needed boost to the economy of the Southern Tier and even many environmentalists agree we want to produce more domestic natural gas that reduces the need for environmentally damaging fuel sources.”

The SGEIS in 2011 provided the framework for New York to be able to have the best of both worlds—economic prosperity while protecting the environment. Indeed, the DEC went above and beyond in its regulations, despite acknowledging the effectiveness of the rules that had governed thousands of wells in the state for over 100 years. In their due diligence in studying the practice to establish New York’s regulations DEC found (emphasis added):

• “[H]ydraulic fracturing does not present a reasonably foreseeable risk of significant adverse environmental impacts to potential freshwater aquifers. Specific conditions or analytical results supporting this conclusion include: The developable shale formations are vertically separated from potential freshwater aquifers by at least 1,000 feet of sandstones and shales of moderate to low permeability; The amount of time that fluids are pumped under pressure into the target formation is orders of magnitude less than the time that would be required for fluids to travel through 1,000 feet of low-permeability rock;” -page 6-53

• “No significant adverse impacts are identified with regard to the disposal of liquid wastes. Drilling and fracturing fluids, mud-drilled cuttings, pit liners, flowback water and produced brine, although classified as non-hazardous industrial waste, must be hauled under a New York State Part 364 waste transporter permit issued by the Department.” Executive Summary, p. 12

• “As noted in the 1992 GEIS and in Section 4. 7 of this document, methane is naturally present in water wells in many locations in New York, for many reasons unrelated to gas well drilling. This is a fact which must be evaluated and considered when a gas drilling impact is suspected as a source of methane in water wells.” page 10-2

• “The Department’s hydraulic fracturing chemical disclosure requirements and public disclosure, combined with the chemical disclosures required from industry for the SGEIS analysis, make the Department’s disclosure regime among the most stringent in the country.” page 1-9

• “The Department’s regime exceeds the requirements of 22 of the 27 oil and gas producing states reviewed and is on par with the five states currently leading the country on chemical disclosure. Additionally, the enhanced disclosure requirements are equivalent to the proposed requirements of the federal Fracturing Awareness and Responsibility (FRAC) Act of 2011.” page 1-9

In fact, after the 2011 report came out, sources close to the governor leaked to the New York Times that he had plans to lift the de facto moratorium and allow permitting to commence:

“The Cuomo administration is seeking to lift what has effectively been a moratorium in New York State on hydraulic fracturing, a controversial technique used to extract natural gas from shale, state environmental regulators said on Thursday.”

The same New York Department of Health (DOH) that would ask for a ban in 2014 released a 2012 analysis in 2013, which was a summary of previous research concluding “fracking can be done safely.”

So what happened between June 2011 and December 2014 to make a state that was poised to make billions of dollars and create tens of thousands of jobs do a complete 180, leave science at the door, and instate a ban on hydraulic fracturing?

2015 SGEIS based on anti-fracking activist “science”

EID recently testified before the U.S. House Science Committee and released a new whitepaper, which lays out in detail the web of interconnectedness between anti-fracking activists and the studies the DOH used to declare a ban on fracking. The purpose of the paper was to answer the question: How did Gov. Cuomo justify a decision that falls so far outside the mainstream?

After all, reaction to the decision to ban fracking has been largely unsupportive. From EID’s testimony:

“While some fringe environmental groups are celebrating, others in the environmental movement say this simply goes too far. For example, Former New York City mayor Michael Bloomberg – a major ally of environmental groups – called Gov. Cuomo’s decision a misguided policy that “doesn’t make any sense at all.”

President Obama’s Interior Secretary Sally Jewell, who served on the board of a national environmental group before joining the president’s cabinet, reacted by saying fracking bans are, “the wrong way to go.” She added that supporters of such bans “don’t understand the science.”

Similarly, California Gov. Jerry Brown (D) – a celebrated environmentalist – flatly refused to ban hydraulic fracturing when the subject came up recently in an interview on Meet The Press.”

So what happened with New York? Also from the testimony:

“To justify the ban, the Cuomo administration produced a 184-page literature review of recently published research papers. But, as detailed in our whitepaper, we discovered significant and undisclosed ties between some of the research used to ban fracking in New York and the political campaign to ban fracking in New York.

For example, one paper was written by fracking opponents who actually used buckets lined with plastic bags to take air samples near oil and gas wells. You might think this kind of paper would get shot down in the peer-review process.”

—

“But there’s more. We found a network of environmentally active foundations funding the groups that produced the research paper, some of the media outlets that covered the paper, and the campaign organizations that pressured the Cuomo administration into banning fracking. These financial ties totaled $3.7 million at the research phase, $2.2 million at the media phase, and more than $16 million at the campaign phase.

This wasn’t an isolated case. We found at least five more research papers cited by the Cuomo administration where anti-fracking foundations provided funding to the researchers, funding to the media outlets that promoted the research, and funding to the campaigns that seized upon the research to drum up political opposition to shale development in New York.”

After all that anti-fracking money flowed in Albany, the Southern Tier has been left with empty coffers and no realistic solutions for how to fill them. And, according to Attorney Michael Joy, who wrote a guest post for EID, the ban itself may even be illegal (emphasis added):

“Again, the regulations set forth in 6 NYCRR 617 that require the State to weigh and balance relevant environmental impacts with social, economic and other considerations and certify that, consistent with social, economic and other essential considerations, the State action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable, by incorporating mitigative measures that were identified as practicable. With extensive evidence that the process of hydraulic fracturing does not pose an adverse environmental risk, and clear evidence that the economic output from natural gas development is well into the tens of billions of dollars, the Cuomo administration’s decision does not seem to comport with science – or the law.  That the administration could not identify effective mitigation measures for an activity without any known instances of adverse environmental impacts is truly shocking.”

The next step for those landowners will likely include lawsuits to overturn the ban or compensation for the minerals they weren’t allowed to develop. Also from Joy’s guest post on EID:

“Should New York’s portion of the Utica Shale prove to be as prolific as some experts and scientists have predicted, the above numbers would increase dramatically. Thus, the lost revenue to New York’s farmers and rural landowners should itself be reason enough to take on this fight, especially since the Cuomo administration’s intent to ban hydraulic fracturing is based on seemingly unsupportable legal grounds. Additionally, the constitutional implications of the arbitrary taking of private property rights, based on unclear scientific arguments, could open the door to multiple legal battles against the ban.”

Regardless, as Joy so eloquently phrases it, the next steps will inevitably lead to the courtroom:

“If politics continues to trump the sound science behind domestic energy production and infrastructure development, the Courts will play an increasingly important role in protecting property rights and the tremendous gains made in safe and reliable local energy production.”

We’ll just have to wait to see how it all pans out, but one thing is clear: New York has left science at the door.