July 1, 2011 — 7 Reasons Why it Won't Be Independence Day For NY's Landowners

Then-candidate Andrew Cuomo, at an Oct. 27, 2010
rally in Brooklyn, a photo by ad454 on Flickr.

July 1, 2011, that's the day, Cuomo said so — the day New York's landowners would finally see some regulatory headway on shale gas.

As this date approaches with a crescendo (and surely passes us by, with one roar or another), I think it's worth reminding everyone of some insufficiently considered recent history in New York State.

As of July 1, folks who happen to wittingly or unwittingly own shale gas under upstate New York will have been restrained in the exercise of their private property rights for nearly three full calendar years, and by seven different shale gas moratoriums.

Seven!  (Yes, it's true, that's including two bans which were proposed, but which were pushed back in the final hours.)

But, still, seven!  It's not a good sign.  Let's break it down.

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A hydraulic battery fracking shale from a vertical wellbore deep within Gastem USA's Ross #1, Town of Maryland, Otsego County, NY, November, 2009.  Many people don't realize that New York doesn't actually have a ban on fracking (which is technically standard operating procedure for completing most modern wells).  But it does currently have a freeze on high-volume fracking.  Reps from the DEC, the DOH, the SRBC, the Sierra Club, and Pro Publica were on site to see this operation, one of the first shale gas tests in New York.  Full PDF here.

THE FIRST BAN — A DE FACTO MORATORIUM STATEWIDE

The first ban — which was always phrased as a temporary measure — traces its origins to a between-the-lines reading of a July 23, 2008 press release (still online as a PDF here), issued by then-Governor David Paterson.  On the surface, the governor had simply announced he had directed his DEC to update its 1992-vintage environmental impact statement generically covering all oil and gas drilling — in order to address any previously unforeseen, unknowable impacts from the much more involved operations necessary for carrying out the shale gas revolution.

Seems reasonable.  And the words "ban," "freeze," or "moratorium" appear nowhere in this press release. 

But the full ramifications sank in shortly thereafter.  The DEC let it be known that it was shelving indefinitely any drilling permit application for any project which envisioned using more than 80,000 gallons of hydraulic fracturing fluid during the well-completion phase.  That was the cutoff — not horizontal versus vertical, and not shale versus any other rock layer — but a basically arbitrary measure of the number of gallons of fluid needed to get the natural gas flowing.  For anything more than 80,000 gallons, the DEC was taking the blanket position that the environmental impacts hadn't yet been sufficiently studied, at least not by the almighty State of New York.  Anything less, you could still get a permit for, and several companies already have.

This First Ban became known as the De Facto Moratorium, because — at least in legal theory, if not in actual business reality — the natural gas industry was still technically free to seek a permit to drill a full-scale well in Marcellus or Utica shale.  The only trouble is, the driller would have to first commission their own site-specific environmental impact statement.  And then, of course, they would have to have the public hearings, and the public comments, and the second draft, and so on.

[Good luck with all that, in other words.]

Another important point worth remembering — but very often conveniently forgotten — is that there was never any deadline to the First Ban.  In fact, as we shall see, this First Ban still essentially lives on as the Seventh Ban.  What's happened is, the DEC's drawn-out, environmental review process fulfilled its underhanded political mission — by becoming a stage upon which anti-drilling activists were given free reign to direct a very public chorus statewide, calling for further delay, which is always a politically easy thing to call for.

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THE SECOND BAN — DELAWARE RIVER WATERSHED INSIDE NY

This ban — which is a ban that manages to wind up overlapping all the other bans, just in case the other bans aren't strong enough — doesn't have statewide coverage.  Within NY, it only affects those 2,362 square miles which happen to drain toward the Delaware River, some unknown portion of which — within Broome, Delaware, and Sullivan counties — likely has any shale gas potential.

Why is this area special?  In this area, there is an extra-added, bonus layer of regulation which New York State allowed to get started, way back in 1961, when it agreed to join the Delaware River Basin Commission.  The DRBC is a federal-state compact formed between NY, PA, NJ, DE, and the federal government, acting through the flood control experts at the Army Corps of Engineers.

On May 19, 2009, the DRBC formally asserted for the first time in its history that it held additional jurisdiction — on top of, or alongside, whatever the PA DEP or the NY DEC might want to do — over all oil and gas development in "its" watershed.

Note that there's a very similar, neighboring river commission, the Susquehanna River Basin Commission (SRBC) — formed by the feds together with NY, PA, and MD — which also contemporaneously asserted that it held rights to additional jurisdiction over gas drilling.  But the SRBC somehow managed to implement its regulatory program within months of starting out, strictly limiting its efforts to a fulfillment of its primary mission of having a say over water use in the watershed.  At this point, the SRBC's water-withdrawal permitting scheme is basically a well-oiled machine which you are more than free to see for yourself, in action, right here, on the web.

The DRBC, by contrast, takes a much more lumbering view of its powers.  The proposed regs are very far-reaching, and yet still under review.  Many thousands of comments have been received.  These things take time.  Like it or not, we must accept that this tangled web of obstruction and delay is, in fact, a policy that's endorsed by a majority within the dynamic imposed by the five-seat roundtable of NY, PA, NJ, DE, and the Obama Administration's Army Corps.

[Something's going on here — something which has not yet been fully reported.  And something which has completely stalled the property rights of anybody owning land in this watershed, PA or NY.  I think it's got something to do with what the rep for NY is being told to do, under Paterson, and now under Cuomo.  If it were up to just Obama, PA, and NY, then we should see drilling already in this area for domestic fossil fuels.]

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South End of Skaneateles Lake Looking Southwest, from a nice collection of Finger Lakes aerials by Bill Hecht appearing on the account of lvanvlee8 on Flickr.  Yes, I do believe the grayer cloudy stuff visible in this unfiltered public water supply is naturally occurring sediment.

THE THIRD BAN — CATSKILLS AND SKANEATELES

It's true this ban is also only a partial ban, geographically, but it's still very significant.

On April 23, 2010, then-DEC Commissioner Alexander "Pete" Grannis announced his agency would essentially keep the original de facto ban in place permanently against any land which happened to drain its snowmelt and rainfall toward the unfiltered drinking water collection systems of the City of New York, or the City of Syracuse.

Whatever the specialists with the DEC Minerals Division might be cooking up with the SGEIS, it wouldn't count in these areas, the political people determined in advance.

What this amounted to was this:  Taken aback by the anti-fracking firestorm then sweeping the public conversation statewide, the Paterson/Grannis Administration had made a half-hearted, too-little, too-late, political effort to soothe the Per Capita Majority.  They announced there would be no shale gas developments allowed in the Catskills areas upstream of New York City's numerous water reservoirs, or in the rural areas of Onondaga, Cortland, and Cayuga counties which are upstream of Skaneateles Lake, where Syracuse draws its water.

I think what they were innocently thinking was — maybe then there would be way fewer New Yorkers who cared enough to spend all their free time, going to war against shale gas.

What's most interesting to me is the preposterous regulatory distinction forming the basis for how they proposed to regulate different areas in different ways.  It ostensibly had to do with filtration of public water supplies — or the lack thereof.  But this very quickly tumbles as a thinly disguised and completely disingenuous excuse.  Beyond hum-drum sediment-control issues, the most alarming of any possible contaminants from a well pad would easily pass through any conceivable filter.  (Salts?  Hydrocarbons?  Glycols?  Forget-about-it!)

In short, filtration is a smoke screen; politics is the true distinction.

[About the filter issue:  NYC and Syracuse — for economic and political reasons, but not for reasons of public health — have long fought federal regulatory pressure to filter their water supplies, in the same way that pretty much every other water department has already been respectfully required to do.  The leaders know that the best way to keep these big-city, money-saving regulatory exemptions rolling is to keep alive the feel-good premise that these water departments were already cooperatively, peacefully, harmoniously, greenly, and sustainably managing all private economic activity upstream, so as to keep the water clean.]

[The word "pristine" is used a lot, along with "precious," and also "pure."  Never mind that livestock, wildlife and certain human individuals I happen to personally know are also routinely "peeing," "pooping," and "powering" their fossil-fuel-powered watercraft in that very same watershed every chance they get.  But — in the same way that Applebee's don't sell the steak, it sells the sizzle — well-educated, well-meaning, and well-paid environmental professionals have been very-much-willingly seduced into routinely bamboozling the unwitting public with the completely unscientific notion that there's something vaguely warm, embracing, and motherly about not filtering your urban drinking water!]

Former Site of Cannonsville, a shot taken taken by dougtone on Flickr, while traveling State Route 10 which parallels the Cannonsville Reservoir.  This is upstream of Deposit, NY, on the West Branch of the Delaware River.  Cannonsville was one of two dozen Catskill towns sacrificed in order to supply New York City with water

The mechanism for imposing this kind of majority belief system upon the minority interests of people who owned the land — and upon people who have jobs, and upon people who wished they had jobs — was the same tourniquet which prevented any full-blown shale gas drilling from happening statewide after July 23, 2008:  The DEC was simply going to demand a full-blown environmental impact statement for every job.  The policy people were, in essence, borrowing a trick from the activists — using the environmental review law to do a blunt, irrational, and obstructive job for which it was never originally intended.

[Imagine if neighboring PA insisted on all this paper from consultants — for all the thousands of Marcellus wells that have been permitted to date!]

Cannonsville Shoreline, a photo by kmitschke on Flickr, who writes: 
"It smelled like a wet dog so bad, but nobody was in sight!
This is where New York City gets a lot of their water from... 
Note to self:  Don't drink NYC tap water."

Again, like the First Ban, and like the Second Ban, the Third Ban is still in place — although you would never know it by reading the current assaults upon shale gas coming from anti-drilling groups with constituencies in those areas.

Why is that? I ask.

That's because — if there isn't a current crisis, with the Fate of the Earth hanging in the balance — then the anti-drilling groups lose a key reason for their very existence.  Honestly and truthfully calling attention to the already installed Third Ban — the permanent Catskills/Skaneateles shale gas ban — only serves to make their drama seem a tad overwrought, shall we say, in the minds of too many millions of people.  And so opponents don't like to talk about it much.  And — since opponents currently generate or spin probably 90 percent of the information floating around out there, measured by weight or volume, regarding this issue, at least in the Northeastern U.S. — that's why most New Yorkers have completely forgotten that New York State has already taken the New York City (and Syracuse) drinking water question off the table, frackwise.

Whether there was ever any legitimate, novel, or unmanageable threat to this drinking water — it doesn't matter; it's off the table.

Note also that the Third Ban has had no political or legal difficulty in fulfilling its literal objectives.  I think it's fair to say that drilling in these discrete watershed zones — barring some kind of major, apocalyptic, Mad-Max-style global energy crisis — is simply not going to happen anytime soon, because there will be no way politically to go back and change what's been done.  [In fact, the property rights of these private landowners have already been successfully whittled down considerably.  And there hasn't even been a lawsuit (yet), politely requesting compensation.  Amazing, to me, sometimes, the sort of abuse that landowners will put up with.]

Note further that the Third Ban has completely failed to fulfill its between-the-lines objectives:  It hasn't caused the opposition to take a chill pill and settle down on the fracking question.  On the contrary, if anything, it's only given them more ammunition:  Why distinguish between filtered and unfiltered water systems?  Why distinguish between drinking water drawn from the surface, and drinking water drawn from underground?  Water is everywhere.  Land is everywhere.  Why not treat it all the same?  Why not ban everything?  And so on.

THE FOURTH BAN — THE LEGISLATURE BARGES IN

In this version of the moratorium, both houses of New York's Legislature got into the act — over two separate months in 2010 — by seeking to answer the clamor from activists for a more definite freeze on fracking.  Legislators by wide margins passed a ban designed to temporarily run until May 15, 2011, a time period in which the body could be expected to be annually in session, running forward, making renewal a convenient rite.

Industry critics asserted the Legislature's sloppily worded measure — crafted without even the slightest inkling of respect for the meanings of various geological terms, or industry jargon, or what it what would all mean in the real world of actual jobs and actual people — would have brought nearly all still-existing drilling to a standstill, mostly in Western New York.
Believe it or not, the ordinarily reluctant NYS Senate went first, Aug. 4, 2010, and the vote was a crushing, 48-9, in favor of the Fourth Ban.  It was a bit of a cake walk, I think, for frack opponents.  In hindsight, industry and the resource owners were caught off guard.  I think it's also fair to say, in hindsight, that this was the wrong thing to do — especially for upstater legislators, and especially for upstate Republican legislators.  But at the time it was politically impossible for these folks to see their way clear to publicly do the right thing.

The NYS Assembly vote came much later, on Nov. 29, 2010.  And the vote was a more realistic, 93-43.  It pains me to say this, but I think those numbers are the real deal.  And that is the work which lies ahead, for anybody who wishes NY could find a way to safely bring the shale gas opportunity to fruition here.

THE FIFTH BAN — THE BEST DEFENSE DAVID PATERSON COULD MUSTER

On a Saturday, December 11, 2010, just before leaving office — as though in answer to a public plea I posted here — Gov. David Paterson vetoed the legislature's effort in a bold, intelligent, well-principled move — for which I will remember him fondly, forever-more.  Paterson said what the Legislature was up to was largely symbolic, but with job-killing implications — and that he wasn't going to be the guy to take people's jobs away, for symbolic reasons.

[Thank you, David!]

In the same statement announcing his veto of the legislature's frack ban, however, Paterson softened the blow by creating the Fifth Ban — formalizing the existing administrative ban with an executive order which extended it until June-July 2011 at the earliest.

Incoming Governor Andrew Cuomo later seconded this order, and later still firmed up the deadline for a new Governor's-Eyes-Only draft from the DEC — July 1, 2011.

And so that's where things stand right now. 

But let us not forget that that date would fall at nearly the Three Year Anniversary for the Empire State's having completely balked at the onset of the shale gas revolution.

THE SIXTH BAN — THE ASSEMBLY BARGES BACK IN

On June 6, 2011, the NYS Assembly passed 96-46 what I'm calling the Sixth Ban — a symbolic, one-house measure.  Basically, the downstate-dominated, Democratically heavy Assembly renewed the exact same wording of the moratorium that former Gov. Paterson had so pointedly vetoed months previously.  The only difference was they changed the end date to June 1, 2012.  And the vote was 96-46, rather than 93-43.  I am still trying to figure out how to ascertain who changed, or what districts changed.  (Anybody?  Anybody?)

There's a video online here where — at the 5:26 mark, in answer to a reporter's question — Assembly Majority Leader Sheldon Silver, with all apparent sincerity, reveals that his group took this act partly because they actually feared the Cuomo Administration would start issuing drilling permits shortly after the July 1 SGEIS deadline — while they were out of session, and thus incapable of having any influence over the situation.  Clearly, Silver (and these other people in the background with the seriously clenched jaws) is either a really good actor — or else he is the most naive observer to ever gaze upon the political landscape of the former Empire State (and something tells me that's not it).

The follow-through on this Sixth Ban from the 2011 legislature, however, necessarily involved the NYS Senate — rather than an eleventh hour veto from within their own party, sitting in the governor's chair.  It turns out, in the intervening months, the Senate had been so red-shifted by the 2010 Mid-Term Elections that the equivalent frack moratorium bill couldn't make it out of committee.

That fact was not made confidently clear in the minds of the Marcellus shale gas landowners until close to midnight on June 24, 2011.  In fact, the landowners were pestering senators statewide with phone calls and emails for weeks beforehand, right up until the last day.  It was only when the Senate wrapped up business with a gluttony of last-minute bills — including the now-famous Same Sex Marriage measure — that it was clear the frack moratorium would not be in the mix.

[Phew!]

Just before the State Legislature finally went home, somebody — on one of the better message boards for knowledgeable upstate landowners — posted a quote from Gideon J. Tucker, a New York City lawyer and newspaperman, who got himself noticed back in 1866 for working this gem into some legal writing:

"No man's life, liberty or property are safe while the Legislature is in session."

I mean — how true is that, right?

SO WHERE IS THE SEVENTH BAN?

Bureaucratically, and administratively, simply consider this:  After July 1, 2011, when Cuomo's seconding of Paterson's executive order runs out of running room, what's to stop the natural gas industry from suddenly fracking New York?

If you are an anti-drilling activist, then you ask this question with much drama and much alarm — because it helps drive home your case for OMG!

But more level-headed observers recognize that, after July 1, 2011, New York State simply returns to the situation under the First Ban — where the DEC is still refusing to issue any permits, while the citizens of New York have another chance to closely examine this situation — with undoubtedly more than 1,000 pages of guidance from professional people at that agency.

I do not doubt — once the DEC's three-year-old analytical labors are released to the public, sometime after July 1, 2011 — that, of course, the shale gas question will be immediately transported back to the cynically angry hearings, the petition drives, the ever-lengthening comment periods, the rough-and-tumble world of wild-eyed persuasion, and so on.

My only doubt concerns whether New York's political process will leave enough room for the citizens of this state to objectively gather all they need to know, and to make up their minds in an intelligent way, with fairness and balance to all concerned — including their own fellow New Yorkers.

Frankly, the story of the Seven Bans leaves me doubtful.