Sunday, February 16, 2014

NY Media Step in as Cuomo's Left Guard:
Fending Off Upstate's Suit for Shale Gas

My favorite pic from an Oct. 2012 Albany rally by New York landowners for drilling — and for all the associated economic benefits, including jobs.  Faced with a new lawsuit against Gov. Cuomo from essentially this same base, the Albany Times-Union and other upstate media are now, as predicted, going the extra mile to marginalize this constituency.
Mainstream reporters in New York are already bringing out the long knives in an effort to protect Albany's dysfunction (desirable, for some) — by trying to explain away a legal challenge from 70,000 pissed-off Upstaters, who want to get drilling already.

On the lefthand side below, for purposes of bitterly sarcastic criticism, I've set out every word of the Albany Times Union's coverage of news that the Joint Landowners Coalition of New York has now filed a long-threatened lawsuit against the Cuomo Administration
If the TU is offended by this and wants to sue me for copyright infringement, I plead with them to bring it on.

The JLCNY's case seeks to compel New York State to (
phrasing it bluntly)... either shit or get off the pot on the fracking question — which has been hung up exactly six years as of Feb. 15, 2014, the anniversary date of industry's first-ever request for a full-scale, in-state shale gas drilling permit.  The lawsuit was filed the day before, Valentine's Day, Feb. 14, though I can't see that many reporters or editors availed themselves,
in their word play, of such cheap, readily accessible irony.

The piece below is by TU environmental beat reporter Brian Nearing, and it's one of the finest, most-instructive examples I've ever seen for how to spin obligatory coverage of an inconvenient news development.  Truly, they should teach this stuff at Syracuse University's Newhouse School, or down at the journalism program at Columbia.  Any young person — training to work in journalism that's gotta be either spun left, or spun right, depending on the editor, the outlet, or the market — should be paying close attention to Nearing's A-plus effort.

Nearing writes for a readership area that has virtually no direct economic stake (or even an environmental stake) in the outcome of New York's shale gas battle (except possibly for the issue's impact on the persuasion and regulatory industries, which are both pretty big in Albany).  And so he's been free to get totally out hand, and few have been around to object.

Well, I killed my damn Sunday objecting.  Here, let's take a paragraph-by-paragraph look:

Gov Cuomo sued to force gas fracking start

Suit also seeks to end environmental review

By Brian Nearing

Updated 9:07 pm, Friday, February 14, 2014

Landowners who want to make money from natural gas hydrofracking on their land on Friday sued Gov. Andrew Cuomo and his commissioners of health and environment over the more than five years spent by the state without coming up with a decision to allow the controversial drilling technique.
Notice that the headline and subhead are calibrated to be firstly about raising either alarm or dismissiveness among the newspaper's perceived base, and only secondly about challenging a dysfunctional process (which would seem worthwhile for too many readers).

Then the landowners' big-picture assertion — that their economic situation has been wrongfully impaired by Gov. Cuomo's politically motivated indecision over shale gas — is actually immediately used against them.  Really, it's a nice twist.  In fact, nowhere in the entire article are the landowners (and their land-poor supporters, such as me) treated straight-forwardly as a class or faction of New Yorkers who are legitimately fighting for their personal economic interests, as well as for their communities' economic interests in jobs, income, taxes, opportunity, and so on.

The plaintiffs just "want to make money."  And this supposedly shameful motive flows not from drilling, or property rights, or a technological revolution, or developing a natural resource, or even supplying demand with resource extraction — but "from natural gas hydrofracking."

(Oh, how could they?  See, that's what you're looking for.  Whichever way has the most persuasive punch, that's the way you want to run with it.)

Then the lead closes with the old standby "controversial."  If you as a media professional personally don't like something, you just throw in the word "controversial."  Nobody can argue with it, because it's not untrue.

However, you don't have to use the word "controversial" every time it's available and true, and nobody will ever check.  So, for instance, many reporters decline to routinely describe Obamacare as "controversial," and many New York outlets decline to describe Cuomo's "Safe Act" as "controversial."  (It's a pretty handy trick for all the kids out there.)

One last bugaboo:   Nearing — incorrectly, but possibly for the 7,000th time in NY — describes fracking as a "drilling technique."  Fracking may be accurately described as a technique used by drillers, but it's not a technique for actually drilling the hole; drilling the hole is done first, and fracking just the bottom part of that hole is done afterwards; so fracking is really a "completion technique."  (Okay, okay — you're right, I'm going to have to give up on that one.)
Filed in state Supreme Court in Albany County, the lawsuit accused Cuomo of delaying a decision for "his own political expediency" and sought to force the state to end an ongoing environmental review that would allow drilling to begin in the gas-rich Marcellus Shale that runs through parts of the Catskills and the Southern Tier.

It was filed by the Joint Landowners Coalition of New York, a Binghamton-based, pro-fracking group that claims it has 70,000 landowners in 14 counties as members.
Bloody masterful!

You don't want to offer any full paragraphs from the JLCNY's extensive media outreach effort, in which several representatives offered full quotes giving their gist of their case.  (What did you train for — stenography?  Way too straight-forward!)

Instead, use scare quotes around plucked phrases from the group's assertions; it comforts readers by letting them know whose side you're on.  Then describe the environmental review as "ongoing" (rather than "stalled," or "long-delayed" — which are actually more truthful — because, see, "ongoing" makes it seem completely understandable that all this continues to take so long).  And then throw the Catskills in there (because everybody loves the Catskills, even though only a small part of the Catskills are expected to fall within the feasible Marcellus shale zone).

But, wait, there's more:  Describe JLCNY as a pro-fracking group, not pro-drilling, and certainly not pro-development.  Because it's scarier that way.

Then use the word "claims" to cast doubt on the group's representation of a large number of widely dispersed upstate people.  Don't do any actual journalistic work, like maybe asking the group for a membership accounting.  For starters, you don't really want to know.  Just dismiss it with the word "claims" — much cheaper, much simpler, and much more effective that way.
The coalition is being represented by the Colorado-based Mountain States Legal Foundation, a conservative legal group with a history of advocating for fossil fuel issues and that has been financially supported by energy companies including ExxonMobil and Texaco.

Here, we leave out the fact that JLCNY can be documented as having spent a full year raising $111,000 from its own grassroots by the time it got this case started.  And we leave out, for the time-being, the fact that the group has been guided for an even longer period of time by its own Binghamton-based lawyer, Scott Kurkoski — who, in fact, still signs just above MSLF as co-counsel.  Instead, we attribute the entire effort to the arrival of the conservative outsider MSLF, which has historically been financially supported by Big Oil and Gas.  (See?  It's not that hard, once you get into the swing of things.)
Fracking relies on a high-pressure blend of water, chemicals and sand pumped a mile or more underground to break apart gas-bearing rocks. Opponents claim it can harm air and water quality, but supporters say the process is safe if done properly.

The issue has turned into a political firestorm in New York, where polls show a narrow majority oppose fracking.

Well, Nearing did here actually say "opponents claim" — I guess that's something.

As for the rest of it, the reporter could just as truthfully have reported public opinion polls as showing New Yorkers statewide are split on fracking.  Or that some polls have shown a narrow majority of upstaters in favor of drilling or fracking, while statewide it's generally been a narrow majority against.  Or that most poll results are entirely dependent on the wording of the questions:  "Drilling" or "shale gas" — okay, I guess, maybe; "fracking" — oh, no, that's bad, right?

But that's no good for Nearing's purpose.
Other plaintiffs against the state include Schaefer Timber & Stone, a Deposit, Delaware County company owned by Adolf and Larry Schaefer, which held a 93-acre fracking lease in Colesville, Broome County, with bankrupt Norse Energy Corp.; LADTM LLC, a group including Schaefer that now holds the energy rights to the property; and Kark Family Trust, in Fenton, Broome County, which also holds gas leases in Colesville with Chesapeake Energy Corp.

Any knowledgeable reader from PA, WV, OH, or even NY would be well within his noggin to ask — What in the Sam Hell is a "fracking lease"?  And why does the reporter think any landowner would be accurately described as "holding" it?

Let me just serve briefly as your Native Guide in order to explain the willful ignorance that has long plagued New York on this terminology:  A "fracking lease" is the exact same legal contract as what has been described everywhere else in the capitalist world — since Col. Drake struck oil in Titusville, PA, in 1859 — as an "oil and gas lease."  However, anti partisans in NY call them "fracking leases" because that's scarier, and it triggers a desired emotional effect, which sympathetic reporters have seized upon.

(Similarly, even brine produced from traditional natural gas wells is now "fracking waste"; pre-frack drill cuttings are likewise now "fracking waste"; natural gas delivered by pipeline is now "fracked gas" — a phrase which I've even used, for its pointedness in certain situations; pre-frack freshwater impoundments at drillsites are now "fracking ponds"; and trains carrying crude oil originating out of North Dakota are now "fracking trains."  Also, if it's crude oil from western Canada, it's from "tar sands," not "oil sands."  If anybody challenges you, you can always say, "It's just semantics."  Get it?  Got it?  Good!)

Also, on my second point — "holding" — I admit there is massive public confusion on this, especially in the Northeast U.S.  But here's the real deal:  The landowner or mineral rights owner "signs" or "grants" or arguably even "sells" the lease; the exploration and production company (or the driller, if you want to just tell it like it is) "takes" or "holds" or "buys" the lease.  Afterwards, the lease is understood, alone or with others, as a "leasehold" held by the driller, while the landowner or mineral owner has a royalty interest, which is valuable only if the job moves forward in time, and succeeds in producing fossil fuels.

It may seem confusing for journalists, but there is a large number of landowners in Upstate — many of them with college educations, and many of them without — who have already figured all this stuff out on their own (though it's true they haven't yet benefited much from this self-education).

Even if it's just dead-wrong, however, it's more persuasively effective for a journalist to smear a landowner as "holding a fracking lease."  So that's what the reporter is up to here.

(Nearing is actually correct, on the other hand, in describing LADTM LLC as "holding" the energy rights to a particular property; that's because that entity as mineral owner hasn't been able to lease those rights, due to the political and regulatory situation in New York, which has soured virtually all private sector interest in getting things started through the first step of buying leases.)
In addition to Cuomo, the lawsuit also named state Environmental Conservation Commissioner Joe Martens and Health Commissioner Nirav Shah, who since September 2012 at Marten's behest has been conducting a health study of potential health risks from fracking.

The lawsuit calls the health study "nothing more than an excuse" orchestrated by the governor to avoid making a decision.

DEC spokeswoman Emily DeSantis declined to comment on the lawsuit.

Both the DOH and the DEC have repeatedly (and without much success) tried to correct media reportage that Shah's assigned task is a "health study."

It's a "health review" — put simply, a second look at the DEC's draft SGEIS by the DOH's Shah, whose bureaucratic underlings already long ago weighed in.  This is in order to see — in the context of all the science that's continually flying around out there — whether the DEC's plan, which inconveniently actually proposes regulated drilling and fracking, misses any opportunity to be more protective of human health.  (Or, if you prefer, whether the DEC's plan misses any unmitigatable, legitimate threat to public health — which, if so, would presumably immediately put a permanent kibosh on the whole exercise, at least in New York.)

However, anti's always call it a "health study" because that phrase helps explain why the job (vowed by Shah a year ago to be done in a few weeks) could possibly be so complicated and take so long.  Sympathetic reporters such as Nearing (and, notably, public radio's Karen Dewitt) chronically get this wrong, and it's because these reporters have spent so much of their time talking to opponents, their language and their understanding of reality have been profoundly distorted.

Nearing also ignores a key legal question raised by the landowners' case:  Has the DEC strayed beyond its legislated powers in handing off this job to the DOH?
In a Jan. 31 letter to Martens warning that a lawsuit would be filed unless the state ended its environmental review quickly, Mountain States lawyer Jaimie Cavanaugh, joined by landowners coalition lawyer Scott Kurkoski, wrote that Martens was "duty-bound to promote the development of oil and gas resources in New York state." They also accused Martens of violating the State Environmental Quality Review Act by asking for a health study.

Again, notice the usefulness of scare quotes surrounding out-of-context, plucked, partial text.

See, that way, you imply disposal of the arguments, without ever allowing that the litigants may actually have a legitimate, underlying point or two.  Does the DEC have that assigned mission under the state's own resource conservation law?  Does the state's environmental review apparatus allow for buck-passing and indefinite delay, whenever that's desperately needed by state leaders for political purposes?
Formed in 1977 with financing from the late conservative beer billionaire Joseph Coors, the Mountain States group is headed by William Perry Pendley, a former federal energy and minerals official under President Ronald Reagan and who has publicly compared environmentalists to communists.

Pendley last month vowed to sue the federal government if the Bureau of Land Management enacted proposed rules that would require disclosure of chemicals injected underground during fracking, as well as set tougher standards for demonstrating well bore integrity and managing flowback water that returns to the surface with the gas.

The foundation has filed lawsuits seeking to weaken affirmative action, racial quotas in hiring, and the Voting Rights Act.

Yee-haw!  Independent research!  Outside the bounds of what a partisan faction is trying to feed the media! 

This, I like to see.  It shows spunk, work ethic, and initiative.  But I also like to see that kind of effort applied in a fair, even-handed way.

So, for instance, when a partisan group financially supported by the wealthy, anti-drilling Park Foundation is trying to feed the media something, reporters should tell us a little bit more about that.  In those cases, though, Nearing has historically offered nothing but the sound of crickets.  I just searched the TU's still-online archives for "Brian Nearing" and "Park Foundation," and — though I can't vouch for whether my methods are forcing the newspaper's computer to give me truly accurate results — I didn't find a single hit.  "Brian Nearing" and "fracking," on the other hand, seems to get you 70 possibly relevant articles.

In the case of JLCNY vs. Cuomo, however, we can see that Nearing has gone the extra mile to wiki up some dirt on MSLF and its leader Pendley.  This is in order to cast maximum aspersion, and to call to mind well-worn bogeymen for eastern liberals:  Financial backing from Coors, and the dude worked in the Reagan Administration — that explains everything that some people think they need to know; Pendley is said to be on record as having red-baited harmless greens; to be against any disclosure or standards for fracking on federal lands; and, to top it off, he's against equal opportunity for the various races and sexes.  Wow!

See, to do this right, you need to have enough sense to also withhold certain information, even if it's right there in plain sight on Wikipedia.  You need to understand there are simple, explanatory facts that must be left out:  MSLF is a $2 million per year operation, which is not that big in the national context of leftward or rightward NGO's, constantly duking it out over environmental issues.  But the organization's legal challenges have been important enough to frequently go to the federal appellate level, and beyond that to the U.S. Supreme Court, where it sometimes wins, and it sometimes loses.

A couple few remaining things, and I'm sorry that I have again wound up running so damn long, sticking all this at the end. 

First — given six years of Nearing's (and others') preposterously unbalanced regional media coverage — is it any wonder that New Yorkers are split on fracking?

The anti side has truly done a masterful job in demonstrating the political power of this kind of pressure —
on some level, professionally organized, but coming across to the media as carried out by a sympathy-inducing, grassroots army of the panic-stricken.  This campaign has been positively welcomed as a legitimate crusade, or as an interest-heightening crisis, by the likes of the TU's Brian Nearing, public radio's Karen Dewitt and Susan Arbetter, Gannett's former Tom Wilber, Capital New York's Scott Waldman, and many others.  But true balance with the full context — true balance with the rest of the story — has been given a valiant attempt by pretty much only one reporter statewideJon Campbell of Gannett.  And even he could do much more, and much better, in my estimation.  (On the other hand, the anti effort has been unfairly dismissed in full by only one primary voice, Fred Dicker of the New York Post.)

I urge anyone to simply compare how this issue is covered by most of PA versus, say, most of NY; or by public radio in PA versus public radio in NY; or by Binghamton, NY, versus Albany, NY; or by Campbell versus Nearing.  It is truly remarkable that all this disparity in fact and tone and angle is supposed to flow out of objective coverage of essentially the same issue.

For two, going back again, the TU's headline reads, "Gov Cuomo sued to force gas fracking start" (whereas Southern Tier Gannett — after blacking out their own reporter's coverage for two whole weeks — went with the much more reasonable, "Southern Tier landowners sue Cuomo over fracking delay.")  I neglected to point out that TU's version of reality may be accurate and truthful in terms of politics and motivation, but it's inaccurate and untruthful in terms of law and procedure

Here's why:  The DEC is already fully empowered to eviscerate the current legal assertion from landowners — by simply declaring the SGEIS to be finally finished, even with a conclusion that no regulatory scheme can possibly adequately protect New York's environment, however you want to define it, from shale gas development.  (They would have some explaining to do to get there — standing alone among some 30 states which are already regulating exploitation of this resource, including such blue locations as Illinois and California — but that's all it would take.)

So this case from the landowners (along with a parallel effort from the bankrupt estate of Norse Energy) is truly throwing down the gauntlet, or rolling the dice, on very technical grounds.  It demands procedurally only that New York just decide already, one way or the other, as compelled by the state's environmental review law.

Of course, there is a subtext:  If Cuomo finally effectively says, "Sorry, no, I misspoke — this is not really about the science, and we're not really open for (this kind of) business," then there will be a large number of parties that will have some new legal arguments to make.  But these folks believe themselves to be held up from making this very different kind of case, due to the current stalemate.

Lastly, like it or not, there is still such a thing as a Bill of Rights in this country, including ownership of property rights, operating inside a partially free market.  Furthermore, there are still a few thinkers kicking around out there, such as William Perry Pendley of MSLF, who attribute much of the standard of living in the United States to the long-slogging exercise of these very freedoms.  That sentiment may seem, to youthful ears, quaint or conservative or both, but it's not extreme, and it's not something that New York — the one-time Empire State, birthplace of IBM and Xerox, and home to Wall Street — can so readily dismiss without showing itself to be a total horse's ass.

Of course, there are inevitable conflicts, and courts have long been assigned to balance the rights of individuals (even vilified political minorities), against whatever highly politicized definition of the "public interest" might work its way forward, so as to eliminate or limit these rights.  If this sort of elimination winds up happening in New York over the shale gas issue — not through the arguably just realm of objective regulation, but rather at the hands of an emotional mob, urged on by wealthy ideologues, and unchecked by media, government, or the courts — that will unquestionably be an injustice.

And the lesson of history is you simply don't do that to people without eventually having to pay for it, one way or the other.  That's been proven true by both the American Revolution and revolutions within America — movements for abolition, civil rights, women's rights, and the list goes on.  In this narrow, provincial case, it will also be proven true for upstate landowners as an oppressed class.

Frankly, I just think these people deserve way better.


Anonymous said...


I applaude your clarity of "FACTS"

and the power of semantics!!! I

believe it's class 101 in the

school of jounalism


I applaude you!!!!

Your simplicity and clarity of

"the truth" vs Semantics has been

long overdo.


August Braun said...

Andy: great analysis, insight, andexposure of the not so clever means with which Nearing wrote his tripe. The ending was fitting: NY landowners deserve better than to be jerked around by a wealthy and arrogant NYC dweller (Cuomo). He has a lot of gall sitting in his nat gas heated office in Albany and nat gas heated apartment or home in NYC and tell those of us who have Marcellus shale under our land to just wait some more. I think he has no choice but to approve HVHF'ing because to do otherwise makes him look very selfish, parochial, and unpatriotic as there are 30 other states who now allow it. When Cuomo starts to look more extreme than California's enviro-nut Jerry Brown, he can totally forget about ever becoming POTUS.