They say that numbers don’t lie—which sure is the truth when it comes to the growing movement against industrial shale gas drilling and hydraulic fracturing.

Yesterday in Albany, well over 600 New Yorkers from across the state were out in force for the Hydrofracking Day of Action, a few hundred more than for the event in 2011. And this on the heels of last week’s final submission of comments on draft state guidelines and regulations, which early estimates put at over 40,000--more than triple than the first round of comments in 2009.

At a morning rally, the voices of celebrities, policymakers, and representatives of environmental and citizens groups rang out. Whether calling for an outright ban, stronger regulation and accountability, or alternative energy solutions, they all made their goal clear: Governor Cuomo and state leaders must do whatever it takes to protect New York’s water, air, and communities from the dangers of fracking.

Following the rally, participants dispersed for meetings with nearly every office of the Assembly and Senate, putting forth several shale gas-related bills that will be top priorities for activists and organizations during the current legislative session.

And then by the end of the day, news broke that the U.S. Energy Administration had drastically cut estimates of gas in the Marcellus Shale by 66 percent--making it seem even more reasonable for citizens not only in New York, but also nationwide, to question whether the risks of extraction are worth getting a little more gas.

As they decide how to cast their votes, New York's elected officials would be wise to do the math and make a serious and unshakeable calculation—one in which a healthy energy future is weighted far more heavily than unsafe energy development.

An announcement yesterday from the U.S. Environmental Protection Agency brought a welcome patch of good news for the residents of Dimock: the federal agency will use its authority under the Comprehensive Environmental Response, Compensation, and Liabilty, Act (also known as “Superfund”) to begin immediate deliveries of temporary fresh water to four Dimock families whose wells were contaminated by the careless drilling practices of Cabot Oil and Gas Corporation and begin independent well water testing at those homes and 57 others in the area to discover if additional water deliveries are needed (see EPA’s Action Memorandum here).

For those just tuning in, families in Dimock have been without reliable access to fresh water since December 1st , when the Pennsylvania Department of Environment allowed Cabot to stop deliveries of daily fresh water despite the fact that local water was still contaminated.  EPA’s decision – which comes after rallies by grassroots organizations and letters from NRDC and other environmental organizations urging the use of emergency authority – is based upon previously conducted water testing results showing, among other things, that Dimock wells contain a slew of highly toxic and dangerous pollutants, including arsenic; barium; bis(2-ethylhexyl) phthalate, a plasticizer commonly called DEHP; glycol compounds, which are used in antifreeze; manganese; phenol, a disinfectant; and sodium.

Despite the fact that many of the results reviewed by EPA come from PADEP’s own Bureau of Laboratories, PADEP showed no signs of concern for residents’ health after it allowed Cabot to shut down water deliveries in December.  Indeed, PADEP Secretary, Michael Krancer, even sent a letter to EPA criticizing the agency’s knowledge of Dimock as “rudimentary” and basically telling EPA to mind its own business.  EPA’s determination yesterday that the chemicals found in Dimock wells do present a hazard to human health and its subsequent swift action demonstrate that protecting the health of all Americans from environmental contaminants is the agency’s business, and reinforce EPA’s critical role when the state leaves its citizens out to dry.

Looking forward, we hope that EPA completes its own testing of Dimock wells as expeditiously as possible and provides emergency fresh water to any additional families potentially at risk of drinking contaminated water.  Ultimately, however, it is not EPA who under federal law should be responsible for the Dimock water bill, but the “person” who was found to have contaminated that water in the first place: the Cabot Oil and Gas Corporation.

We hope too that the New York Department of Environmental Conservation takes notice of the trials and travails of Dimock residents during its review of the estimated 40,000 plus comments it received last week on its environmental impact study and proposed regulations for new fracking in New York.  Pennsylvania rushed to frack, and toxic water (not just in Dimock, but across the state) is what they have to show for it.

In the meantime, hat’s off to EPA for finally providing at least some Dimock residents with the relief they deserve!

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It's meant to be encouraging to say that every night brings a new dawn. But today, officials with New York State’s Department of Environmental Conservation (DEC) probably wished they could stay in bed, safely hidden by darkness. Instead, as the public comment period on the guidelines for developing natural gas from Marcellus and Utica shale ended, they awoke to confront an astounding number of letters (early estimate: 40,000) and reams of supporting documentation—all awaiting their review and analysis.

The process to develop the guidelines (formally called the draft supplemental generic environmental impact statement, or dSGEIS) and allow for public comment is required by state law and has been underway since 2009. It certainly isn’t easy to conduct a comprehensive assessment of a complex issue and update regulations to address modern-day, industrial gas development of a type and on a scale that New York has never seen before. And the DEC gave it a decent try, issuing a 1000+ page document covering topics from water to wildlife and traffic to toxics.

Yet given how much is at stake, the dSGEIS and accompanying proposed regulations just don't cut it. Earthworks detailed several critical flaws in our comments, and with our partners in the New York Water Rangers coalition, have demanded that they be fixed. At the same time, in-depth technical comments by a group of experts persuaded leading environmental organizations that the dSGEIS is too deficient for the state to move forward with drilling.
With no consideration of cumulative impacts, analysis of economic costs, plans to dispose of hazardous waste or prohibit the use of carcinogenic chemicals, insufficient setbacks from buildings and water resources, and more, the dSGEIS and draft regulations certainly aren't what so many had hoped and waited for.

Earthworks and our partners were particularly astounded that the DEC didn’t analyze health impacts (and barely referenced health in the document), despite growing concern over the problems (respiratory distress, bloody noses, skin rashes, constant headaches, and more) faced by people (and animals) living in America’s gas patches. The DEC ignored a request from hundreds of health professionals to do so, as well as increasing evidence nationwide that such health impacts are real and are happening now—and serve as tragic and harsh examples of what could happen in New York if the state doesn’t sufficiently protect communities and air and water quality.

It remains to be seen whether Governor Cuomo and the DEC will heed such criticism and work to fill the gaping holes in the dSGEIS and regulations—a choice that would match their repeated statements that science and safety, not emotion, will ultimately determine New York's decision. Or whether they will yield to industry pressure and spin the dSGEIS so they can proceed with issuing drilling permits, perhaps in 2012.

If they take the latter path, New York could end up like every other oil and gas state that’s jumped onto the shale gas train as it rushes down the tracks: trusting an untrustworthy industry that’s rarely held accountable for damage or required to prevent it, and willing to risk the health of its citizens and environment in the pursuit of a bit more dirty energy.

Long days (and likely some nights) lie ahead for DEC staff as they sift through comments. Let’s hope that when they emerge, the day will be bright—one in which New Yorkers have not only boldly spoken out, but have truly been heard.

Over the last few years, television commercials extolling the virtues of hydrofracking while conveniently papering over the degradation it causes have become pretty common fare in Pennsyslvania and western New York.  The imagery is predictable — gorgeous meadows and untarnished countryside, attractive young couples, both happily employed by the same benevolent Oil & Gas company (focus groups loved the man who looks like the lead singer for Megadeath with a haircut) — you get the picture.  The message conveyed by this young couple has become a mantra in the industry:  drilling is good for their family, good for the surrounding community, good for the environment, good for the economy, good for Americans.  The industry’s strategy is apparently to repeat this rosy view of hydrofracking until the public forgets all of the problems it can cause, like toxic air pollution, groundwater contamination, and billions of gallons of hazardous wastewater.

Gas industry spending on advertising and lobbying is running high in New York.  The New York Times reports that Chesapeake Energy has spent $1.6 million in NY in the past three years.  In the three years prior, before the regulatory process for drilling in New York ramped up, the company spent only $40,000. At this juncture, the New York State Department of Environmental Conservation (DEC) is deciding how to regulate high-volume hydrofracking before it issues its first permit.  Accordingly, Chesapeake has hired 11 lobbyists (come to Albany and I’ll introduce you to them), and 3 private companies to spread the good news about fracking.  Since 2010, the gas industry and its allies have contributed $430,000 to candidates and political parties in New York and of this, $106,000 went to Gov. Cuomo.

That’s just political contributions. The Times puts the total amount of money for all expenditures by the industry and its allies at $3.2 million since the beginning of 2010. That’s compared to environmentalists’ spending of $725,000. The disparity is magnified than these numbers would suggest when you consider that most environmental groups work on a slew of issues in Albany, so their outlay is spread thin across many campaigns.  The gas gang, on the other hand, has used its money to create white-hot concentration on one thing – getting permits from the DEC to drill for gas in the Marcellus Shale.

It’s not a newsflash that the oil and gas industry has major political muscle anywhere on the globe.  This industry won a critical exemption from the Safe Water Drinking Act in the Bush ‘43 years (just one in a long history of regulatory and tax advantages gained by the industry – from the ‘40s, they got to write-off taxes paid to foreign governments, then not pay the IRS. They also overthrew the democratically-elected government of Iran in 1953, ushering in the Shah, and generally making a fairly famous mess of it there but I digress).  Under Bush the Younger, Congress passed the 2005 Energy Policy Act which (thanks to V.P. Cheney, former chief executive of Halliburton) contains what has become known as the “Halliburton Loophole,” which exempts hydraulic fracturing from the Safe Drinking Water Act.  The Safe Drinking Water Act applies to “underground injections,” which is the very definition of hydraulic fracturing.  And yet somehow fracking is exempt.  That is par for the course for the industry:  by and large, they get what they want, even if it means flagrant loopholes and a tilted playing field.

Last spring, Common Cause, in its report Deep Drilling, Deep Pockets, says that Chesapeake spent $1.1 million in 2010 alone on advertising and lobbying in New York State (with $870,000 spent on advertising).  One goal of the ads is to soften resistance to the coming of hydrofracking to New York’s southern tier, using pleasant landscape images as surrogates for actual scenes of heavy industrial development.  The industry often shrewdly uses substitutes, third-party validators and front groups to make their case.  In Dimock, Pennsylvania, Cabot Oil & Gas contaminated an aquifer due to shoddy drilling practices, and then convinced members of the town to form the group “Enough Already” to protest against building a water pipeline to bring in freshwater to the affected families.  As if contaminating groundwater is just fine—but providing clean water for affected families is a nuisance.

In New York, the industry’s use of third-party proxies in particular lobbying efforts have been utilized to defeat a bill in the NYS legislature which would have created a moratorium on fracking from the summer of ’10 to the summer of ’11.  In Albany, the Business Council of New York State and the state chapter of the National Federation of Independent Businesses were busy in the halls of the Legislative Office Building (LOB) bashing the moratorium. Better for business groups, especially independent ones, to make the case for fracking. This fall another organization, Clean Growth Now, jump-started a campaign for “responsible gas drilling.”  The spokesman Michael Elmendorf, a long-time Pataki functionary (who also got in on the gas action oddly around the same time), got so caught up in his fracking mojo that he slammed enviro opposition to fracking as including an “occasional dose of hysteria.”  CGN calls itself a grass roots effort and claims to be a moderate voice between the gas industry and environmentalists.  Elmendorf’s rhetoric suggests he has forgotten they billed themselves as a “middle way.”  We should probably not be surprised that the group includes no environmentalists.  CGN members include the Business Council of New York State and the National Federation of Independent Businesses (the same groups lobbying against the moratorium).

The big cahuna front group and main drilling organization in Pennsylvania is the Marcellus Shale Coalition. MSC has recently made a few feints across the border into New York and since fracking in PA has evolved more dramatically than in NY, it makes sense to see what the industry may have in store for us. The semiotics of the name suggests that this is at least a partly diverse entity with real people in it—if not, then why not just name yourself the Gas Industry Coalition to Drill in the Marcellus Shale? Which, with virtually no investigation, one finds is the case – MSC sports the usual suspects like Chesapeake, Consol Energy (“our future is the Marcellus Shale”), XTO (aka Exxon), Williams Companies (a big New York lobbying spender), Cabot Oil and Gas (talk about messes), Hess and many, many more.

In the summer of ’10, MSC hired Tom Ridge, former Governor of Pennsylvania and Czar of Bush 43’s Homeland Security Administration (who he later trashed). For a little more than a year (and $900,000) Ridge, who didn’t lobby for the gas industry (except when he did) worked the local and national media putting a respected, familiar face on an industrial process which had launched an international movement in its opposition.  He scored a multitude of press clips, hours of TV and internet face time and beaucoup bucks to push for light regulation of hydrofracking and extra-lite taxing of fracked gas revenues.  In his interview with Steve Colbert, he repeated the industry lie that no instances of contamination have been linked to fracking.  Indeed, Ridge dismisses many of the concerns about the environmental and public health impact of Marcellus shale drilling as “phony hysteria.”  But Tom Ridge is a piker compared to another Tom, the current PA Governor, Corbett.

In PA, the gas industry spent $3.5 million in lobbying and ads in 2010.  MSC spent $1.1 million, Chesapeake nearly $400,000.  Corbett over several years received $1.6 million while all candidates and parties in the state got $6 million from 2001 to 2010. These numbers may wind up as guestimates—Corbett, because of the budget crunch, ordered his Department of State to stop entering contribution reports filed by paper, so only the electronic donations are counted.

On any level, the current Gov. Tom is a good investment for the gas industry. Corbett’s main legislation regarding fracking would impose a 1% severance tax on gas revenues and drastically restrain local communities from regulating fracking through traditional zoning powers (the issue of home rule over fracking is currently being litigated in New York).  This bill continues to make its way through the PA legislature which is still in session at year’s end.  Consol Energy (a member of MSC) supports this bill so much that it paid for a Super Bowl junket for PA Senate President Pro Tempore Scarnati and another state senator.  Both support Corbett’s industry-friendly bill.

So we can expect even larger campaign expenditures, more ads, more Bush-era apparatchiks as the fracking fight escalates in New York.  It may be even more exciting than that as the industry, ever-innovative, searches for the game changer.  That may be the use of “psy-ops,” or psychological warfare —a counter-insurgency military tactic —which the industry has employed to disarm local opposition to fracking.  At an industry convention in Houston last month, Matt Pitzarella of Range Resources (MSC member) told the gas troops that “we have several psy ops folks working for us… very much has that understanding of psy-ops in the Army and Mideast been helpful in Pennsylvania.” Not to be outdone, at the same event, Matt Carmichael of Anadarko (MSC member) suggested that his oil/gas colleagues “download the US Army slash Marine Corps Counterinsurgency manual because we’re dealing with an insurgency.”

Not to worry. Chris Tucker of Energy in Depth told CNBC “it’s a joke.” No doubt. Energy in Depth knows that Anadarko meant because EID is a coalition led by the Independent Petroleum Association of America.  On that worthy board are Conoco/Phillips, Marathon Oil, CNX Gas, Chesapeake, and the psy-ops farm Anadarko.

More than ever, now is the time for us to follow the prodigious amounts of money flowing into Albany from the Oil & Gas industry.  The New York legislature is entertaining a bill that would require the uniform treatment of hazardous waste.  This would close a loophole in federal and state law which exempts the Oil & Gas industry from the same waste disposal regulations that apply to every other industry, despite the fact that fracking waste is contaminated with known carcinogens from the chemical additives as well as high concentrations of sodium, chloride, bromide, and other inorganic constituents, such as arsenic, barium, other heavy metals, total dissolved solids (TDS), and naturally occurring radioactive material (“NORM”), that significantly exceed safe drinking-water standards.  Assuming one so-called “frack job” occurs in the entire life of every well in the state, hydraulic fracturing operations would ultimately generate between 18 and 71 billion gallons of wastewater over the next thirty years.  If each well is “fracked” twice over its thirty-year life, we will see between 36 and 142 billion gallons of hydraulic fracturing wastewater generated in New York.  This bill passed the Assembly and was introduced in the Senate last legislative session.  We are hoping for the reintroduction and immediate passage of this bill in order to handle the billions of gallons of hazardous wastewater that fracking New York would generate.

How much does it cost to scuttle a good law?  That’s something else we’ll learn next session.

This blog was co-authored by Legal Fellow John Wood