Fracking whack a mole

By Cecile Lawrence, Ph.D., J.D. March 12, 2013 Residents of the Town of Dryden in Tompkins County, NY, could be forgiven for thinking in February 2013 that as far as keeping out the entire process of HVHF, the high volume hydraulic fracturing method of drilling for natural gas (NG) or oil AKA fracking from their town was concerned, it would be smooth sailing for the near future. The year before the town board had amended its zoning ordinance to include a ban on the exploration, production or storage of natural gas and petroleum, in essence banning hydraulic fracturing. In short order the Town of Middlefield a bit further north, in Otsego County, also passed a similar ban. Lawsuits against both towns for their bans had failed. Motions by plaintiffs drilling corporation and leased landowner for re-argument had also failed. Although plaintiffs had filed appeal documents to the Appellate Division in 2012 and a date for oral argument loomed for March 21, 2013, Dryden residents went ahead and planned a series of home solar tours as part of the roll out of solar throughout the county. But so many potential barriers to rapid conversion towards sustainable renewable energy continued to pop up that people fighting fracking must surely have felt that they were in a forced game of Fracking Whack a Mole! Communications labeled urgent! would intermittently fly out. For just one example, at the near end of 2012 not only was there the pressure of writing and submitting comments to the proposed NYS DEC (Department of Environmental Conservation) pitiful regulations for fracking, with the help of Dr. Sandra Steingrabers Thirty Days of Fracking Regs program, the NYS Public Service Commission (PSC) was discovered to have met in Albany late November 2012 to plan for the rapid and thorough expansion of natural gas service in the state including to residences/businesses already serviced with heating via electricity, presumably even if it was from solar! The initiative was introduced with a long statement repeatedly touting the benefits of clean natural gas. The agency held a technical conference in January and set a late January deadline for comments, which had to answer 21 questions strongly biased in favor of such expansion. A low number of comments led to the PSC extending the deadline for one month, then for another month, as folks scrambled to send in comments. Whack, Whack a Mole! Buses to the protest against the KXL pipeline included activists who took the day away from their solar tour planning and from dealing with town boards in sacrifice zone counties that either had passed a we trust the DEC resolution or stolidly refused to do anything to protect the town. One even had gone so far as to ban during meetings any further utterance of public statements about fracking. The town supervisor had leased, become a shaleonaire millionaire and had heard 1

enough from those against fracking. The residents had also had enough and sued, thereby bringing national attention to the town of 2400 or so residents. Whack! Whack Back! Anti-fracking activists in New York State were keeping a close eye on Governor Cuomo, the NYS DEC, their town, and possibly their county. Some of the counties were wont to give tax breaks (PILOTs) to a pipeline company even though it was not as if they could easily take the proposed pipeline route to a different county without causing themselves a lot of needless trouble. Gov. Cuomos guideline was that towns that did not want fracking would not get fracked, i.e. he would observe Home Rule, the basis of the Dryden and Middlefield cases. But yet again, time to get out the mallet. The DEC had been reviewing the management plans of the state forests, including the state forests near the Town of Dryden itself including the possibility of planning for drilling for gas in the forests, with just one public hearing. Whack! Meanwhile, media across New York State announced that Gov. Cuomo and his former brother-in-law, Robert Kennedy, had been having telephone conversations about the fracking issue. Knowing the tight rein that Cuomo had been keeping on his administration, including leaks, its beyond obvious that this information getting out to the public must have had the blessing of the governor. A controlled leak. Could anti-fracking activists breathe with relief, thinking they now had confidence that Cuomo would finally become convinced that he needed to ban fracking in the state? No, because this was a shape-shifting kind of mole. Also obvious was the fact that the person whom he consulted and who reported the consultation sympathetically to the media, is a family member of one of the major presidential families in the U.S. Its well known that Cuomo has his sights set on 2016. So does Hillary Clinton. And, maybe, so does Gov. Chris Christie of New Jersey. A March 1, 2013 poll showed Christie well ahead of Cuomo. Undoubtedly, Cuomo knew of this. This is a weird kind of mole that you dont know whether to whack it or not. The health study thats being used as the reason for Cuomo to further delay his decision is being touted as a "large-scale, scientifically rigorous assessment" of drilling in Pennsylvania that will look at detailed health histories of hundreds of thousands of patients who live near wells and other facilities that are producing natural gas from the same Marcellus Shale formation that New York would tap. Unsaid is the well known fact that industry practice is to force those sickened, whose drinking water they polluted, whose animals died, to sign confidentiality agreements in exchange for a buy out or even simple delivery of water. Therefore, no health study can ever be rigorous while these records remain sealed. Whack! And whack again! Furthermore, just as the moratorium on fracking in New York State since 2006 has allowed the extension of drilling leases, a downside which members of the 2

New York State Green Party have repeatedly tried to bring to the attention of those fighting fracking, such delay has also allowed the building of additional pipelines, such as the Millennium, and the accompanying compressor stations and metering stations, etc. The Green Party of New York at least since 2010 has been calling for a complete and total ban on fracking as the only answer to this threat and amongst Green Party and other groups, criminalization of the act of fracking. Green Party spokespeople early got a lot of pushback from those who, fearful of the power of the people, were adamant that you could not ban fracking as, supposedly, it was an unconstitutional taking of property. Since then, the takings argument has been weakened by the recognition that a ban on fracking does not prevent a landowner from using the land for other purposes where there is no split estate situation (i.e. the person owning the land is different from the person owning the minerals below the surface, which is a whole other discussion). Many things and processes are already banned at state and federal levels which arguably are much less life threatening than fracking. The Green Party has been years ahead on the fracking issue, pointing out early that the practice is inherently dangerous, toxic and a major threat to human, animal and planetary health, all borne out by later studies. And, of course, with expected exportation of NG from import terminals now being converted to export terminals, the price of NG will increase to the benefit of industry and the detriment of homeowners and small businesses. The delay for the health study will also provide time for the conversion of these terminals. NG is a grand bargaining chip in Obamas holster (mixing metaphors, yes) when hes dealing with Europe, Asia and Russia, a chip not to be taken away from him by the likes of activists against fracking. Perhaps. The choice therefore for activists is whether to be pawns or people. Stay tuned and keep your Whack a Mole mallet ready. --------Cecile Lawrence is a member of the Green Party of New York State and ran for U.S. Senate in 2010 and county legislature in 2011.