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AG fuels fracking debate

Attorney General Eric Schneiderman has threatened to sue the federal agency members of the Delaware River Basin Commission if they do not commit to study environmental impacts of high-volume natural gas drilling in the region. Many environmentalists are concerned what effects hydrofracking can have on the drinking water obtained from the basin. Photo by Gazette file.
April 25, 2011
The debate over hydraulic fracturing in New York between a gas industry looking to harvest the economic bounty in the Marcellus Shale and environmental advocates wary of the environmental impacts of the drilling process heated up again last week following legal threats issued by the attorney general.

On April 18, Attorney General Eric Schneiderman announced he would take "aggressive" legal action against the federal government if it does not commit to a full environmental study of hydraulic fracturing in the Delaware River Basin within the next 30 days.

Schneiderman threatened to sue the U.S. government unless it promises to conduct a full environmental review of proposed regulations that would allow natural gas drilling, including hydrofracking, in the Delaware River Basin, which is the source of 50 percent of New Yorkers' drinking water.

"Both the law and common sense dictate that the federal government must fully assess the impact of its actions before opening the door to gas fracking in New York," said Schneiderman. "New Yorkers are correctly concerned about fracking's potential dangers to their environment, health and communities, and I will use the full authority of my office, including aggressive legal action, to ensure the federal government is forced to address those concerns."

Schneiderman's threat is included in a letter sent to several agencies that are part of the Delaware River Basin Commission, a federal interstate body with legal authority to approve or disapprove activities that could affect the water resources in the basin. Those agencies include the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, the National Parks Service and the U.S. Environmental Protection Agency.

The commission would not comment on the attorney general's letter.

"It would be inappropriate to comment at this time since the DRBC staff has not had the opportunity to discuss the content of the attorney general's letter with our commission members," said commission spokesman Clarke Rupert.

The commission was formed during the Kennedy administration in 1961 as a way to balance control of the Delaware River by the four states it runs through. The commission is comprised of the governors from New York, New Jersey, Pennsylvania and Delaware, and the federal government represented by the U.S. Army Corps of Engineers.

In December 2010, the commission released a proposal for natural gas drilling regulations in the basin. It estimates its approval could result in 15,000 to 18,000 gas wells drilled, many of which would use fracking, a process that involves sending a mixture of water, sand and chemicals deep into the ground to break apart rocks to release natural gas that is captured and brought to the surface. The potential for so many drilling sites has prompted environmentalists and New Jersey officials to voice concerns about the potential for damaging the basin's ecosystem, viewshed and tourism.

According to the attorney general, because the National Environmental Policy Act requires agencies to conduct a full review of actions that may cause significant environmental impacts, those relevant federal agencies are obligated to comply and review the potential significant impacts of the controversial method of fracking in the basin.

"The involved federal agencies have all acknowledged that proposed natural gas development would risk significant environmental harm." Schneiderman's letter reads. "Nevertheless, these federal agencies have approved moving forward with the rulemaking, agree[ing] to vote against a moratorium on regulation development pending completion of an impact study. [The agencies'] failure to prepare a Draft Environmental Impact Study violates NEPA."

A sea of environmental advocates has come out applauding Schneiderman's ultimatum, including Kate Sinding of the Natural Resource Defense Council, who said her organization is in "absolute agreement" with the attorney general.

"The [commission] was established as a part of a federal compact, and so it has to comply with federal law, [which] requires that federal agencies like the DRBC fully evaluate the environmental consequences of their actions before they move forward," said Sinding. "Not only is it the sensible thing to do, it's the legally required thing to do."

Oil and gas industry representatives, however, were not as enthusiastic about the attorney general's statements. The Independent Oil and Gas Association of New York argued the National Environmental Policy Act requirement Schneiderman referenced does not apply.

"NEPA applies to federal agencies and federal actions," said association Executive Director Brad Gill. "In Delaware Water Emergency Group, et al. v. Gerald M. Hansler, the court held that the DRBC is not a federal agency."

The Independent Oil and Gas Association also argues the commission is working to prevent water pollution and there is no reason to believe it would do other than "what it has always done."

"IOGA of NY believes the DRBC has proven to have an effective process for the four basin states and the federal government to work together to manage water resources in an integrated manner for the benefit of all citizens within the basin," said Gill. "The attorney general's statements appear to run counter of New York's duty as a member of the DRBC."

The Marcellus Shale Coalition, an organization comprised of more than 180 organizations, including energy companies, law firms and energy advocates, came out against the attorney general's statements, saying another environmental impact statement would be duplicative.

"It doesn't seem like a common sense proposition given that there are layers and layers of regulations and safeguards currently in place to protect the Delaware River Basin's water shed," said Travis Windle, spokesman for the Marcellus Shale Coalition.

"These efforts to call for additional layers of red tape and needless studies will only further delay the economic, environmental and national security benefits associated with responsible natural gas development from the Marcellus Shale."

But environmentalists agree with Schneiderman's assertion the Delaware River Basin, which includes the New York City Watershed and portions of eight New York counties stretching from Broome to Orange, is too fragile of a water source to allow drilling without a proper study.

In 2010, the DEC announced a separate and more extensive state review process would be required for any natural gas drilling in the New York City and Syracuse watersheds.

"With New York City as the largest and purest surface water supply on the planet and with the safe drinking water for half the state's citizens and the largest city in the country dependent on protecting the surface of this great water supply," said Adirondack Mountain Club Executive Director Neil Woodworth. "You know this is a no-brainer for the attorney general to issue this statement and be committed to sue if the federal government didn't take action to evaluate the impacts of this, you know, intensive industrial activity right in the middle of this large surface water supply."

Sarah Eckel, legislative and policy director for Citizens Campaign for the Environment, however, believes the commission is forgoing the Draft Environmental Impact Statement to rush ahead with drilling in the region.

"It has been many organizations', including mine, opinion that the [commission] is really just rushing forward with their gas drilling," said Eckel. "New York is in the middle of this gas drilling regulatory process, and we think that they need to wait for New York to finish, and wait for the EPA study. We're glad that the attorney general has come out and defended New Yorkers' statements that they would like the DRBC to wait."

As the state Department of Environmental Conservation is conducting its review of potential fracking impacts in New York, the U.S. Environmental Protection Agency is doing a study of its own on nationwide effects.

Gov. Andrew Cuomo ordered the continuation of former Gov. David Paterson's executive order that forbids the issuing of permits for new gas drilling operations until the DEC issues a final State Generic Environmental Impact Statement on high-volume hydraulic fracturing combined with horizontal drilling. Horizontal drilling permits gas extraction efforts to cover a larger area from a single drill site than vertical drilling does.

The SGEIS is expected in June, but DEC officials have said their review will not end until all salient issues have been reviewed.

Windle, however, says the longer New York waits to begin fracking, the more business and economic aid the state loses.

"It's not as economical to just produce vertical wells because they do not have the ability to reach and access the amount of natural gas otherwise, so there's really no incentive to go and drill in New York when you can go and drill horizontal wells in West Virginia, Ohio and Pennsylvania," said Windle. "There is a clear recognition that communities along the Southern Tier of New York in particular are struggling significantly economically and this would really be an enormous shot in the arm to those communities."

According to Windle, a Penn State study found Pennsylvanian development of the Marcellus Shale created 80,000 jobs to date. The Independent Oil and Gas Association projected industry employment levels reaching 15,727 new jobs in New York by 2015.

Erika Staaf, a clean water advocate for PennEnvironment, argued the toxicity of hydrofracking and the possibility of pollution would be much more costly than the money lost by preventing gas drilling in the basin.

"We believe it's just one of those resources that should be protected," said Staaf. "It would certainly be more expensive and more costly and more trouble to clean up pollution from hydrofracking there than it would to just prevent it in the first place."

Windle argues there is a lot of misinformation in regards to what is in fracturing fluids and how much pollution it causes. According to him, the fluid is made up of 99.5 percent water, and "sand you'd find on a playground;" the other chemicals are only a small portion.

"This isn't something you want to drink, no one's ever suggested that. More importantly, there has never been a single case of those fracturing fluids ever entering a ground water aquifer," said Windle. "And if natural gas is used for power generation, there could be a dramatic reduction of overall emission rates nationally. I think you need to look a little further at how that information was gathered, processed and put forth."

Woodworth argues that as the amount of drilling expands, so will the risk of harmful contamination.

"Sometimes you hear industry people say, well we've done hydrofracking in the state for 20 years and nothing bad has ever happened. Well the simple answer to that statement is that very low levels of hydraulic fracturing has been done at much smaller amounts of fracking fluid and water," said Woodworth. "High volume hydraulic fracturing, which is 3- to 5-million gallons per fracking job has never been done in New York state and has never been done in anywhere as sensitive as New York City and the Catskill's water supply."

Woodworth said when the water is driven down to frack, it can mix with highly contaminated water that has been "sitting down there for eons" and can mix with dangerous heavy metals and chemicals such as barium and radium, which then returns to the surface.

"About a third to half of the water that's being used for that industrial process comes back to the surface, and it's stored in what looks to be enormous farm pods," said Woodworth. "So this highly contaminated water that is 10 times saltier than the ocean, that is radioactive, that has these heavy metals and hydrocarbons that are carcinogenic is being stored in these open pits. [The pits] can overflow with enough rainfall, they can rupture, and they can leak and that's besides the fact that these hydrocarbons and chemicals can actually basically evaporate into the atmosphere where they're as dangerous in the atmosphere as they are in liquid form."

Woodworth also warned of the possibility of contamination through accidents such as a truck accident or an explosion like the Deep Horizon rig, which created an oil spill that covered much of the Gulf of Mexico. Last Wednesday, the Associated Press reported Chesapeake Energy Corp., a member of the Marcellus Shale Coalition that seeks to expand its operations in New York, had a blowout at a well site near Canton, Pa., contaminating a stream.

Windle argued the drilling regulations already in place in Pennsylvania are very strong and do everything they should to prevent any environmental destruction.

"We're talking tens if not hundreds of sheets of paperwork that must be filled out by professional engineers. If you want to talk about something that isn't green it's the amount of paperwork that we have to submit," said Windle. "To secure a production permit, an exploration permit on the well casing side, it's exhaustive. From the water side, it's a cradle-to-grave regulatory scheme in place to ensure that water is being protected properly and disposed of properly."

Windle said the drilling companies that make up the Marcellus Coalition recycle 70 to 80 percent of the water they use. However, Woodworth argues there are no treatment centers in New York that could possibly handle the "billions of gallons of highly contaminated water."

"Right now it's questionable whether this activity is safe enough to occur in other places and in New York state without more research being done" by environmental regulatory agencies, said Woodworth. "It's very arguable that this is too dangerous to occur near the water supply for half of the state's people."

Sinding agreed, saying the state needs take its time to figure out whether drilling is safe in the Delaware River Basin.

"The reality is that we just don't have the studies completed yet to answer that question," she said. "That is why it's so critical that before we open up new areas to drilling we need to let those studies be completed because we don't have those answers."

Rupert said the commission has paid attention to the all the concerns about drilling in the basin and is reviewing those submitted during a public comment period, which he said over its last two days resulted in 14 boxes of hard copy comments and more than 8,600 correspondents over the Internet.

"Everything will be considered and will be used by the commissioners," said Rupert. "We'll just have to wait and see how that will translate into potential modifications to the draft and ultimately how it transpires in terms of what the commissioners may or may not approve down the road."

He would not speculate on when the commission would release its regulations, but said it was safe to say they would be out no earlier than September.

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