Strange Marcellus Shale Rumblings at 2,000 Feet

BY Tom Shepstone Jun. 19, 2012 19

The New York Times floated something of trial balloon from the Cuomo administration last week, publishing a piece suggesting the governor may soon release the details of a plan that would allow some of the state’s landowners the opportunity to finally produce their minerals, while leaving other folks out.

Needless to say, it got a lot of attention – with some supporters seeing it as evidence that New York may be finally ready to proceed with Marcellus development. Others, of course, had a very different take – many residing in counties that, for whatever reason, didn’t make Cuomo’s cut (actually the DEC’s cut).

The Times article and remarks of Gov. Cuomo made on Fred Dicker’s radio show (30:35) last week have generated lots of comments and raised more than their fair share of questions. The two principal elements of the supposed deal, on which Cuomo was nothing less than officially equivocal in the Dicker interview, are 1) the restriction of natural gas development to certain geographies and 2) geography aside, development only made available to communities that “want” it. Both raise troubling issues for industry and landowners, not to mention inevitable political difficulties for the governor himself — although it’s also possible, I suppose, it could also be the best thing since Lee Iacocca came up with the Mustang. Let’s consider the issues.

How Deep Is Your Love for Marcellus Shale?

The Times royally confused matters with the second and third paragraphs of the article:

The plan, described by a senior official at the State Department of Environmental Conservation and others with knowledge of the administration’s strategy, would limit drilling to the deepest areas of the Marcellus Shale rock formation in an effort to reduce the risk of groundwater contamination.

Even within that southwest New York region — primarily Broome, Chemung, Chenango, Steuben and Tioga Counties — drilling would be permitted only in towns that agree to it and would be banned in Catskill Park, aquifers and nationally designated historic districts.

While the report later said the plan was to restrict development to areas where the Marcellus is at least 2,000 feet deep, that wasn’t mentioned until the 14th paragraph. Depth aside, counties missing from the list included Cortland, Delaware, Otsego, Sullivan and Tompkins, all of which are underlain by the Marcellus Shale and many, if not all, of which have leases in place. Everyone in those counties is now left to wonder: “What happened to us?”

Nonetheless, it’s obvious the idea of restricting development based on Marcellus Shale depth has some appeal at least, although it’s still far more political than scientific. It is, after all, tied to something tangible, in contrast to “home rule” votes or some arbitrary selection of counties such as implied by the article. The Times says:

State regulators believe that by limiting drilling to areas where the Marcellus Shale is at least 2,000 feet deep, risks of contaminating the water supply with toxic chemicals will be reduced. Regulators would require drillers to maintain a 1,000-foot buffer between water sources and the top of the shale formation.

Given that water tables seldom extend below 1,000 feet in the region, as the following slide from a USGS presentation illustrates, there is little likelihood the 1,000 feet buffer, which is already in the draft Supplemental Generic Environmental Impact Statement in several places, will have any practical impact. That is to say, it won’t require any additional depth beyond the 2,000 feet (as it would if the water table extended to 1,500 feet depth for example). More importantly, the chart also illustrates hydraulic fracturing occurs much lower, typically 5,000 to 9,000 feet. This is because the shallower Marcellus Shale doesn’t yield economically recoverable natural gas, meaning there’s no reason, other than politics, to establish a 2,000 feet depth requirement. Science and the market will impose a much greater buffer between any fracturing and the water table.

Water Table Depth Compared to Fracturing Depths

So then: since the depth issue is a largely irrelevant one from a practical standpoint, how is it this standard has become part of the discussion? There is no clear answer, but it could all just be a distraction from what would be a dramatic change in policy — giving towns the right to say yes or no to state-permitted energy development within its boundaries. It could be nothing more than a shallow attempt to appease anti-gas special interests. Another possibility is the Times is correct and there will be a conversion of the depth requirement to a county by county rule for ease of administration, which would play into the hands of New York City, the Park Foundation and the NRDC gang, all of which would dearly love to keep development away from their own properties in the Catskills and Finger Lakes. Finally, the Times could just have it all wrong. It certainly wouldn’t be the first time.

Which is it? Well, one suspects it’s a combination of all these possibilities and some people are trying to lead Governor Cuomo down the primrose lane. Regardless, we know the depth requirement is not based on any real need but, rather, on the need to address the politics of what should be a matter of science and the market alone. This interjection of government into both has no justification and can only lead to problems. Unfortunately, this is the least harmful of what the Times reports.

Location by Applause?

Attorney Daniel Leary, writing on this blog, coined the phrase “zoning by applause” and a variation of this – location by applause – seems to be what the Martens crew at DEC is floating as a possible way to split the baby on natural gas development. If true, this is a complete sellout of landowners in towns where politically correct local officials are saying “no” without regard to law, property rights and science.

Worse, the article suggests it isn’t merely saying “no” that leads to a stripping away of those rights, but merely a failure to say “yes.” This is nothing less than astounding. We have articulated numerous times, on these pages, the reasons just saying “no” are both unworkable and just plain wrong. But, the DEC people are, according to the Times, saying a landowner’s property rights are actually dependent on community leaders saying “yes.”

Is there any precedent for such an absurd policy with regard to any other land use or natural resources development issue? How is this reconcilable with a state policy encouraging development of resources based on science? How does this preserve property rights when there is, effectively, a presumption natural gas development shouldn’t take place until local officials say they want it? It turns every principal of law on its head and throws science completely to the wind by requiring local officials to act in this manner. But, the law of land use doesn’t work that way. Or, at least, it shouldn’t.

Restrictions on development are a derogation of the common law and, therefore, must be strictly construed to the least possible restriction of rights that fits the regulatory need; justification for the restriction must be based on science. The proposal coming from the DEC, nevertheless, says you have no rights until local officials first give them to you and those town politicos “don’t need no stinkin’ badges” or reasons for saying either “yes” or “no.” This is, to put it delicately, a bastardization of the law. It completely separates science from the decision-making and makes it 100% political, with landowners’ rights subject to the whim of elected officials. This is America?

The Times article includes the following map:

Drillable Areas in NY under Cuomo's Location by Applause Proposal

Developable Areas in NY under Cuomo’s Location by Applause Proposal

Notice there is only one area with a significant number of contiguous communities that have proactively said they want Marcellus development. Obviously, others will follow and a campaign is underway to secure as many as possible. But, is it fair to ask communities that have stood firm against the Slottje/Park Foundation assault to now take an extra step to put themselves on the line politically when they know there may well be powerful constituencies within their communities who are opposed? Why should they have to take a bath when it’s all supposed to be based on the science anyway? Why should they put themselves on the line when the state policy is already forthrightly stated as to develop the resources.

Are mineral rights in those communities where there is plenty of natural gas to be trampled because their local officials faced pressure from small lot owners in areas of their towns without natural gas and they were reluctant to antagonize them? It seems this proposal would do just that. If your property is not in a community where the overwhelming majority favors natural gas development, your rights are shot to smithereens. This is expressly unfair and a complete sellout to the interests of anti-development forces in areas such as the Finger Lakes and the Catskills where well-funded groups, such as the NRDC, with connections to Martens and the DEC advisory committee, seek to keep development at a distance.

Is Someone Shooting Cuomo in the Foot?

Certainly, the sudden change of opinion by some organizations, suggests a deal was made by DEC with certain parties, or was it? Here’s what the Times quotes Robert Moore, Executive Director of Environmental Advocates of New York and member of the state committee supposedly advising on the development of regulations, as saying:

“We recognize that gas is going to be part of our energy mix and it’s preferable to other types of fuels that are out there,” said Rob Moore, executive director of Environmental Advocates of New York. “So it’s not really an option to say ‘no way’ to natural gas. But we’re not in a rush to see this resource extracted in New York.”

Mr. Moore called the Cuomo plan, which is being developed by the Department of Environmental Conservation, an “interesting idea.”

“I’d say it’s encouraging that D.E.C. continues to look at these issues very thoroughly and carefully, but there are a lot of questions about how this would roll out,” he said. “Can communities that want to opt in handle it? Is there enough emergency response in the region to handle well explosions? Spill response?”

Less than six months ago Moore was saying this:

How did Moore go from saying “The state simply isn’t prepared now” (3:13) to giving a half-hearted endorsement of natural gas in the Times? Well, we don’t know because he backed away faster than I did the first time I ran into a rattlesnake while land surveying many years ago. Here’s what he said two days later:

In response to the June 13th story, “Cuomo Proposal Would Restrict Gas Drilling to a Struggling Area,” I’m writing to clarify Environmental Advocates of New York’s position regarding industrial gas drilling by means of fracking.

Environmental Advocates has consistently said New York State is unprepared to provide safe oversight of high volume hydraulic fracturing, or “fracking.” Nothing has been presented to change our minds about that, certainly not the recent story about restricting drilling to a portion of the state. We firmly believe New York is not ready to move forward with fracking— statewide or in a limited number of counties.

Appeasing anti-growth interests is not so easy, is it? See other examples here, here, here and here. Yet, there was that initial good word, wasn’t there? One has to suppose Moore got reined in by others but, clearly, the push was on to put out a proposal that threaded the political needle, one that kept development away from the Finger Lakes and Catskills. Unfortunately, threading a needle with a hang noose rope is a bit more difficult.

Politically, this trial ballon, if accepted by the Governor — and ones suspects he’s far too smart to — would create a quagmire. The Park Foundation and their shared employees at CEDC, NRDC and Catskill Mountainkeeper would continue their campaign to stop natural gas development everywhere at the local level – just as soon as they secure prohibitions in the fringe areas where development enjoys tacit, as opposed to full-throated, support. They would target communities where key infrastructure is planned or one town in a logical geographic unit that would make it impossible to develop resources in a straight-forward way.

No natural gas company is going to buy into that kind of uncertainty – and they know that. A compressor station battle 75 miles away in a community without natural gas to develop, but which is essential to creating infrastructure capacity all along the way of a major pipeline, can kill development altogether. No one will ever submit themselves to such unbridled discretion at the local level. The inevitable result of a deal that allows activists to essentially negate state policy willy-nilly is “dead on arrival.” And, if passed, natural gas development in New York is also dead — and with it, the good will Governor Cuomo has worked so hard to develop over the past 18 months.

Tags:

Cuomo, DEC, Development, EID Marcellus, Hydraulic fracturing, Marcellus Shale, natural gas, New York