A dose of reality on fracking

The considerable number of New Yorkers who believed in miracles, that high-volume horizontal hydrofracking for natural gas in the state would be stopped cold because their governor had seen the light, got a rude dose of reality last week.

A bundle of proposed hydrofracking regulations paving the way for permits to drill in the state were posted on the Department of Environmental Conservation's website late Thursday afternoon, without comment or explanation. There will be a public comment period from Dec. 12 to Jan. 11 on the proposed regs, perhaps the only opportunity for public participation before rule-making is complete.

The DEC immediately got a ton of grief for putting out proposed new regs while the required environmental impact statement is not complete, especially a much heralded but opaque public health review by the state Department of Health.

So much for letting science drive the process on going forward with hydrofracking, as the governor has maintained.

But, by Friday afternoon, the DEC, no doubt recognizing legal exposure, backed up a step. A spokesman said no, no a final determination has not been made whether to go ahead with hydrofracking, and that whatever the health department study turns up could indeed scuttle the entire business.

Sure. As far as I'm concerned, the genie's out of the bottle.

Whether you're for or against fracking, the rule-making process getting us there has been from hell, an abomination. The public has been deceived, misdirected and kept utterly in the dark over where the state was heading concerning the most important environmental issue of this generation.

With the filing of those proposed regs, certainly a number of assumptions anti-frackers harbored went flying into the mist.

For one, that nothing would happen before a pending health study by the health department was vetted by three public health experts. If what the DEC posted Thursday was simply for general review, and to meet legal requirements, the DEC should have said so up front. That health study was commissioned by the governor himself before the election, he said, to bolster a legal defense of these bound-to-be-contested new regs.

Yet to this day the public has not a clue as to what the health department is actually looking at, what's being reviewed, whether any recommendations for change will be made. That's all being kept secret by the administration. And apart from the names of the three respected public health experts from outside the state vetting the health department's work, we know nothing of what they are being asked to vet, whether they, too, can make any recommendations, what the limits of their oversight might be.

Again, the administration is keeping that secret too.

But now, disclaimers aside, it does appear the administration has decided to plunge full speed ahead. Once the health department study has been reviewed, any additional regs that might rely on that review will be added to those already made public. Whether the public comment period is extended so that comments could be made on the health department's work remains up in the air, but I wouldn't count on it. It was interesting to see the DEC back pedal on whether the posted regs were the final real deal, but conspicuously no mention was made of the public weighing in on the health department conclusions.

We're looking at fast forward here. By the end of the winter, at the latest, rule-making will be done, permits could be issued, and we're off to the races. And into the courthouse, no doubt. The state's herky-jerky, opaque rule-making will enrich many an environmental lawyer before we're done.

Another great big assumption blown away is that environmental activist Bobby Kennedy Jr. actually knew what he was talking about when he predicted that fracking was a dead issue in Albany. That was just before the election, when it appeared the governor was persuaded by fracking horror stories that the risk was too great to go ahead right now. But, the election is over. Fracking as a potential toxic issue in various political campaigns is gone, for now. Kumbaya is fading in the background. The governor has engineered a Legislature he can manipulate, which means not blocking what he wants, including fracking, and in this pregnant moment it's back to business.

Which is satisfying the drillers. That's always been the Cuomo plan. It's worth noting that as far as time schedules go, for all the doubts and horrors raised, the supremely logical arguments of the antis that we lose nothing by waiting and studying, the polls that show a divided state on the issue, hydrofracking is on the same timeline for happening in New York as was predicted 18 months ago. Feel like you've been gamed? Well, you have.

So now we are back to square one. Just as imposing fracking where a majority of citizens don't want it is not defensible, so is depriving those who do, where they are the majority. As long as negative environmental impacts and costs, from roads to public health, don't spill over from one to the other, we need to accommodate. So it comes down to getting the very best set of regs in place we can, and being assured that the industry that will profit pays the freight and is policed vigorously. I do not feel confident we are there yet, by a long shot.

I don't expect a great deal from the governor's health department reviewing the regs created by the governor's DEC.

Much depends on the courts now, both in terms of keeping the new regs free of driller giveaways through the challenges to the new regs yet to come. And at a higher level, keeping home rule in place. As predicted, two state Supreme Court decisions supporting local zoning bans on hydrofracking have been appealed by the drilling industry.

What we simply cannot get from the Cuomo administration in terms of safeguards from the demonstrable harms hydrofracking can give us will have to come from the courts.

For their part, the Cuomoites are, as usual, steeped in self-serving cynicism. They will have delivered fracking to a major political contributor group as promised. A pro-fracking President will be pleased. A national candidate for the top office can point to his fracking success on the stump in places like Ohio. And if New York inherits a horror story or two? Well, with the price of natural gas at historic lows, the likelihood of massive drilling for years to come in this state are quite low. What the gas drillers want right now is the opportunity to preserve extremely cheap drilling leases, to get a toe hold. They'll get that. Cuomo is gambling any embarrassing consequences will come down on us after he's long gone. No question, the man's a gamer. No wonder he wants more casinos in the state.

flebrun@timesunion.com • 518-454-5453