BillHustonBlog: David Slottje on the Southern Tier Fracking Demonstration Project

February 6, 2013

Southern Tier Fracking Demonstration Project

Industry's Plan to Frack the Southern Tier is

Fatally Flawed

As the controversy has dragged on over whether the fracking industry has proven that the present state of its technology is safe, industry-funded websites have for over a year been calling on Governor Cuomo to direct the DEC to authorize a demonstration program of under 100 wells - to be drilled in New York's Southern Tier.

These pilot program proponents specifically acknowledge that "Fracking has the potential for causing harm to the local environment - air, water and land - carrying with it public health risks." So in part to balance the "risks, costs and rewards" of fracking, supporters of the plan recommend that "[t]he New York City and Syracuse watersheds would be off-limits." This is of course a tacit admission that allowing fracking in those watersheds, even with "best-in-class equipment and state-of-the art methods," presents too great a risk to the water supply for the over 12 million people served thereby.

But the poor rubes in the rest of upstate are a different story.

Not wanting to address why the pilot program is too risky for NYC's water supply but safe enough for the rest of us, industry turns concerns about risks to upstate's health and natural resources into a lab experiment ("Determining the characteristics of this potential harm is the most important aspect of the pilot program"), and seeks to justify its plan as providing jobs for the Southern Tier.

True to form, industry supports its rationale by disparaging anyone, even state agencies, it views as disagreeing with its position. Just this past month the industry's chief mouthpiece in NY posted the following:

"There are rumors floating around, spread by the New York State Department of Labor, to the effect the Southern Tier of New York is on the path to growth and revitalization, a comeback if you will. ... it's not the case. The Southern Tier [... ] needs natural gas development. Make no mistake about it."

Really? So according to the frackers, data generated and released by the State's own Department of Labor are no more than 'rumors being spread around'? And Governor Cuomo accepts that thesis, choosing to rely on fracking proponents who are relying on what the gas industry is saying?

Industry is attempting to frame its demand for a pilot program as representing a "balanced approach" to the question of whether frackers should first have to prove that what they want to do to New York is safe. In fact, there is nothing 'balanced' about a demonstration program, and as industry's lawyers are counting on, the likely effect of such a program will be fully to open NYS to fracking.

First, as a matter of logic any such program would be fatally flawed over the time horizon the frackers envision for the demonstration project. As was the case with determining whether cigarettes posed a health risk, many of the impacts many experts fear about fracking in tight shale formations may not manifest themselves for decades or longer. Possible migration of drilling fluids into groundwater supplies via faults and fractures encountered or created by the well bore is only one example.

Second, there is no need to open New York to fracking either to meet the nation's (or New York's) energy needs or to expedite the closing down of coal-fired power plants. There is already a glut of methane gas in this country - witnessed by the historically low price and the fact that companies are shutting in operations in Pennsylvania and other states. When demand once again exceeds supply, there is plenty of gas still capable of being produced in states across the country that do not have moratoria. It simply makes sense to support prohibiting fracking in New York. In the meantime, we can, and should, advance an aggressive clean energy program that helps make the transition away from fossil fuels to real clean energy that much faster.

Third, even assuming that the DEC has the legal authority to issue permits for "demonstration" HVHF wells - and it is our opinion that they do not - many lawyers on both sides of this matter believe that both for political reasons and as a matter of law, any such pilot program will inevitably lead to allowing HVHF everywhere in upstate.

I will not articulate the legal arguments why that may be so, but lawyers in the area understand the reasons, and one has to wonder whether by agreeing to such a demonstration project, Governor Cuomo (who is of course a lawyer and has lawyers to advise him) is simply attempting to achieve plausible deniability: to position himself to be able to say later that he did not understand that he was holding the reins to a Trojan Horse when he loosed fracking on NY.

It is critically important to understand that the head of the DEC answers to Governor Cuomo. If the DEC decides to grant industry's demand for a 'Pilot Program,' that means one thing:

Governor Cuomo made the decision to allow New York State to be fracked.

David F. Slottje

David F. Slottje is the Executive Director of and Senior Attorney at Community Environmental Defense Council, Inc., a non-profit public interest law firm based in Ithaca, NY. Mr. Slottje believes that the precautionary principle must be applied to the matter of fracking, and that the fracking industry has not come even close to proving that the technology as presently practiced is safe.