Shakespeare Comes to Life in New York State, Unfortunately
The drama that is the New York State decision process on natural gas development is a Shakespearean tragedy in so many ways, but especially for businesses, landowners and residents of the Southern Tier, for whom all the talk about the SGEIS, regulations and health reviews are but excuses for political inaction which are giving groups such as the NRDC exactly what they want – more delay.
Last week, I fielded about 20 questions from media and supporters asking for my analysis of what in the world was happening in New York with the latest delay in the health review that’s supposed to go into the SGEIS. It was anticipated that document would, in turn, create the foundation for new regulations allowing natural gas development to go forward. So what happened, exactly?
There are more interpretations of the delay than answers, of course, and everyone on all sides is simultaneously claiming victory and scratching their head. Observers suggest the tumultuous but ultimately indecisive nature of the Cuomo administration maneuvering on this issue resemble nothing so much as a macabre scene of out Hamlet, the Governor being a character in a tragedy of his own making.
The real tragedy, though, is this; Empire State politics aside, natural gas development is a matter of economic life and death for the Southern Tier. Governor Cuomo, unfortunately, seems unable to summon the political courage required to meet this challenge. How will it all end? No one knows, least of all Governor Cuomo, apparently, but one thing is clear – Southern Tier residents need to get engaged and start raising serious questions.
New York is one of a handful of distinctly urban states, more so than most because of the New York City metro area. Some 92% of the state population lives in urban areas and the demographic center of the state is Orange County, meaning every bit of shale gas region is found well outside the area where most New Yorkers reside. Most residents have little appreciation for what it means to be a rural landowner, but are inclined to love those same rural areas as places of escape.
Laws perceived to offer environmental protection, therefore, enjoy a high priority, regardless of real life impacts. A prime example is New York’s State Environmental Quality Review Act (SEQRA or sometimes just SEQR), which requires environmental assessments and, frequently, full environmental impact statements on virtually any significant project undertaken by, or subject to the approval of, state and local governments. It also applies to the adoption of regulations by the state itself.
The SEQRA rules are needlessly complex and applied in vastly different ways throughout the state. A 3-lot subdivision considered to have an insignificant environmental impact requiring only the completion of 2-page “short form” environmental assessment (EAF) upstate. Downstate, where every land use decision is controversial, it may require a full environmental impact statement (EIS). Either way, the environmental review must take place prior to action to which it relates, although, as a practical matter hearings on each may be combined and approvals may take place the same day, provided the sequence is correct.
There is also a procedure for evaluating activities such as the adoption or approval of plans and regulations where the exact nature of future environmental impacts can only be surmised until such time as there are specific projects proposed. An industrial park, for example, can, at the outset, only be environmentally evaluated in a generic manner by the municipality until the exact nature of tenants is known. SEQRA regulations provide a vehicle for this purpose, called the Generic Environmental Impact Statement (GEIS).
This allows for an initial review of environmental impacts that permits approval of the park itself, but also facilitates later review of specific projects within the park by supplementing the original GEIS to encompass the new activity. This is what is meant by a Supplemental Generic Environmental Impact Statement (SGEIS). A SGEIS is required in an instance where subsequent specific activity falls outside the norms of what was anticipated when the GEIS was prepared.
The same approach is being applied to New York State Department of Environmental Conservation (DEC) regulations governing natural gas development. There is an existing GEIS approved in 1992 that addresses the impacts of the existing DEC regulations of natural gas development. When Marcellus Shale possibilities arose, New York State officials created a distinction known as “high volume hydraulic fracturing” (HVHF) to distinguish the combination of horizontal drilling and hydraulic fracturing that would be used in the Marcellus Shale from the technology used in fracturing the state’s thousands of existing gas wells. Thus was born the SGEIS to which everyone on both sides of New York natural gas debate now constantly refers.
The role of this particular SGEIS is laid out in the document itself. Here is what Section 2.6 says (emphasis added):
2.1 Purpose
As stated in the 1992 GEIS, a generic environmental impact statement is used to evaluate the environmental effects of a program having wide application and is required for direct programmatic actions undertaken by a state agency. The SGEIS will address new activities or new potential impacts not addressed by the 1992 GEIS and will set forth practices and mitigation designed to reduce environmental impacts to the maximum extent practicable. The SGEIS and its findings will be used to satisfy SEQR for the issuance of permits to drill, deepen, plug back or convert wells for horizontal drilling and high-volume hydraulic fracturing. The SGEIS will also be used to satisfy SEQR for the enactment of revisions or additions to the Department‟s regulations relating to high-volume hydraulic fracturing.
Notice there are two distinct purposes to this SGEIS. One is to pre-evaluate the issuance of permits related to horizontal drilling and high-volume hydraulic fracturing. The other is to do the same for regulations that may be enacted for the process. The practical impact of this duality is this; New York State’s DEC can issue permits under existing regulations if the mitigation measures incorporated into the SGEIS are followed.
It can, too, enact new regulations governing the issuance of such permits but that can done subsequently. It does not have to precede the issuance of permits. A lot of attention has been focused on the draft regulations, which have been delayed awaiting the release of the health review and may have to be restarted. This does not preclude the issuance of permits under current regulations once the SGEIS has been approved, a point made by Commissioner Joe Martens last week.
Interestingly, the natural gas opposition has focused on the regulations, effectively using funds raised for charitable purposes to lobby against them. That’s a scandal in itself, which we’ll visit another day, but the greater scandal is the manner in which what should have been a straightforward process completed years ago has been totally politicized and placed in limbo.
First, there was the moratorium imposed on something essentially already being done in the state. Then there was the legal lifting but practical continuance of that moratorium. Next was the appointment of an advisory committee with three NRDC senior attorneys on it, which stop meeting regularly as quickly as it began, with little to nothing accomplished. Then there was a health review that was hidden while another proceeded, not to be outdone by one of the supposedly unbiased authors of this still unreleased new review writing an e-mail to the natural gas opposition effectively commiserating with them about hydraulic fracturing and what was happening.
Photo from 2009 Open Space Institute Annual Report depicting, left to right: John Adams, NRDC founder and OSI Chairman; Kim Elliman, CEO of OSI; and Joe Martens, OSI President
Nothing, though, tops Governor Cuomo’s patronizing statement about acting on science rather than emotion; lecturing the rest of us about how to make scientific decisions and put emotion aside when he has ignored his DEC experts to listen to Yoko Ono and friends, put his own advisory committee into the deep freeze to apparently do political deals with NRDC types behind the scenes, and has refused to listen to the advice of his own Department of Health delivered one year ago.
When it comes to acting on emotion, which is the essence of all politics, over science, Cuomo is the most dramatic of all players. He is not Hamlet, but the queen in the play within the play who, Queen Gertrude, famously observed “doth protest too much” when expressing her love and loyalty toward her king. Cuomo has expressed his love for science over emotion far too many times at this point to be taken seriously.
But, again, this is New York State, where such political theater is a fine art and it’s nothing new. What is new is the length of time it is taking for Governor Cuomo to act and the way the process has been manipulated by the Park Foundation, the NRDC and all the other Rockefeller funded organizations who are little more than gigantic NIMBY organizations. They are also, in the NRDC/Rockefeller case, conflicted to the hilt, with the major players having large landholdings in the Catskills to which they would love to add or surround with land bought on the cheap with a little help from a state willing to overpay for squelched development rights.
We have talked many times on this blog about the undue influence of the NRDC and friends on New York State government. It is pervasive at all levels and comes in the form of lawsuits against towns, threatened lawsuits against the DEC and disproportionate representation of NRDC lawyers on committees. It also includes appointment of Joe Martens (who created the Catskill Mountainkeeper and Open Space Institute, which share founders with the NRDC) as DEC Commissioner and funding networks linking it to a host of supposedly independent opposition groups who act in concert and so on.
The Rockefeller family, of course, created the original trusts that attracted so much attention from the trustbusters of the early 20th century. Today, they are the master of a new trust, with money invested across the board in trying to preserve New York for themselves at the expense of those who reside and must make a living in the upstate areas. It’s a sad fact, but it doesn’t mean they’ll win in the end if upstate New Yorkers start asking some hard questions.
Those questions begin with this; how did a process that, if followed, should have led to a rational decision, despite all the demagoguery, get so far off track?
How did three NRDC attorneys ended up on the state advisory committee?
How did Joe Martens get appointed DEC Commissioner?
How is it all these supposed charities get away with lobbying they don’t have to report as such?
Why is the NRDC so involved in the whole process and simultaneously threatening to sue over the outcome of that very process?
Will Governor Cuomo let Martens approve the SGEIS, theoretically allowing the issuance of permits and then suspend permit issuance until NRDC lawsuits are resolved, allowing him to claim he was ready to go forward but events out of his control interfered? It’s not out of his control, of course, because the cost of the bond NRDC would have to post to cover damages in the event it lost its case would be far too expensive for even that organization to afford. Nonetheless, the Governor could opt to wait on his own, using this as an excuse to ride the fence for several more years.
Will he try this maneuver? A year ago, I would have said no, but, today, given the horrid rash of excuse-making and repeated delays, it is evident the Governor is either afraid to make a decision, paralyzed by fear of the political fallout, or is deal-making with the NRDC and/or like-minded allies to delay things as long as possible and ensure no part of the Catskills is developed, which would allow it to keep securing land at bargain prices. It’s very possible he may choose to delay decision yet again using this tactic. Alternatively, he could just prolong the SGEIS decision, effectively requiring a restart of that process.
Either way, the only thing that’s going to move Governor Cuomo are some tough questions about all this. The days of patiently waiting for science to prevail in the mind of a governor unwilling to look at it are over. It’s time Southern Tier residents spoke up for themselves in protest, before they, too, become the tragic characters in a Shakespearean play.
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