Wednesday, February 6, 2013

Southern Tier Fracking Demonstration Project? Martens DODGES the question


Assemblywoman Barbara Lifton asked DEC Commissioner Martens directly
about any definite plans for a Southern Tier "demonstration project".

He instead answered about what is contained in the SGEIS:

Here's the clip: ~2 min.

On Wed, Feb 6, 2013 at 11:19 AM, Kathy Russell <> wrote:

Thank you for this post, Melanie. I agree complete with David Slottje's argument against the idea of a demonstration project in the Southern Tier.

I attended the hearing on Monday in Albany. That DEC and Cuomo are planning a demonstration project makes "sense" of Martens frequent rhetorical refrain on Monday that since we have not fracked in NYS yet, we don't know what the risks will be. So their thinking seems to be "since we don't know the specific risks for NYS, we will do an experiment, a "pilot project" to find out."


As David says, the precautionary principle must apply to the development of fracking in NYS and we have sufficient evidence from elsewhere that fracking is harmful.

But then, of course, comes the rhetoric which Martens also used repeatedly on Monday: "NYS is not analogous to PA or any other place where fracking is happening." He justified this move at one point by saying that we are going to be different from PA because we will insist on closed circuit storage for frack fluid waste and not have open pits. So he claims we can't take evidence of harm from other states because "we won't be like them."

Can we really believe the DEC is not taking information about fracking from other states? He can't cherry pick similarities and dissimilarities at his convenience! He can't have it both ways! It is unjustifiable for DEC to both use information from other states and not to use information from other states as they wish to justify their immoral intention to frack NY no matter what.

His illogical and immoral rhetoric is shameful.

Kathy Russell

On Wed, Feb 6, 2013 at 8:29 AM, Melanie Steinberg <> wrote:

Sent from my Verizon Wireless BlackBerry

From: David Slottje <>
Date: Wed, 6 Feb 2013 07:00:59 -0500 (EST)
Subject: Southern Tier Fracking Demonstration Project

Having trouble viewing this email? Click here
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.     

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