New York: Explain Why Drillers Got Early Info

Good morning and thank you for the opportunity to speak about New York’s decision on whether to allow high-volume hydraulic fracturing — a decision that will certainly have a profound impact on the Empire State for decades to come.

My name is Thomas Cluderay and I am assistant general counsel for the Environmental Working Group, or EWG. For years, EWG has worked closely with citizens, public interest groups, and lawmakers at all levels of government to champion policies that protect public health and the environment.

As I mentioned on the steps of City Hall last week, EWG has closely followed this debate since 2008, when we testified before the New York City Council, raising concerns about the inherent risks of shale-gas drilling.

Like many others, we also submitted public comments to the state Department of Environmental Conservation on its draft drilling plan, highlighting the plan’s many critical flaws and scientific gaps.
Taken together, the draft plan’s shortcomings make clear that New York is simply unprepared to make a decision on hydraulic fracturing, or at least one informed by best science.

Further, records that EWG obtained from state regulators show that this lengthy review process may already have been compromised, when the Department gave gas drilling companies exclusive access to detailed rule proposals and draft permit language. That access gave drillers an opportunity to influence this rulemaking process weeks before the public even saw the draft rules — despite pledges from the governor that the process would be fair and transparent.

In one blatant example, a drilling industry attorney who represents Chesapeake Energy Corp., among other oil and gas companies, used the opportunity to try to weaken testing requirements for radioactive pollution that might run off of drilling sites during heavy rains.

As you would expect, state regulators have criticized EWG’s Inside Track report, which brought this preferential treatment to light. The regulators say they’ve done nothing wrong by sharing these documents with the oil and gas industry. According to them, it was not only justified but “necessary” to meet their “obligations under state law.”

Let me be clear. EWG has never suggested that the Department of Environmental Conservation engaged in unlawful activity in this rulemaking process. We recognize that regulators have to develop cost estimates for their regulations and analyze how they will impact the subject industry.

But nowhere in the law does it say regulators must share detailed rule proposals or specific permit language with the drilling industry outside of the public’s eye, behind closed doors.

Nowhere in the law does it say regulators can cover themselves by citing vague language on the Department’s website, which simply says regulators have communicated with all sorts of stakeholders in this process — hardly a public acknowledgment that they shared key documents with the drilling industry — and only with the drilling industry — weeks in advance.

Nowhere in the law does it say regulators must engage in preferential treatment and leave it up to public interest groups to file records requests to reveal how the Department’s draft plan could be so tilted toward the drilling industry.

We challenge the Department to explain in detail how this behind-the-scenes dealing with the drilling industry is in fact necessary under New York law. We also challenge the Department — and the governor’s office, for that matter — to fill in glaring gaps in the records we obtained in response to our initial records requests.

For example, we received emails in which regulators said they were going to send key documents to the drilling industry, but we never received copies of those transmissions, themselves. We received documents mentioning meetings and phone calls with drilling representatives, but no records of what was said or done during those meetings and phone calls. I should add that we did not receive a single phone record generated in 2011 between seven members of the Cuomo administration and some two-dozen drilling companies or their representatives. I find it hard to believe there were no such calls.

As the New York Daily News reported on Sunday, the governor and his inner circle prefer to communicate using BlackBerry pin-to-pin messaging if they cannot talk by phone. Unlike regular email, this leaves no real paper trail.

Perhaps that explains the gaps in the records we received, if others in state government and the drilling industry are following the governor’s example of conducting business in ways that avoid creating a permanent record. We may never know what has happened behind the scenes as the state’s draft drilling plan makes its way to the governor’s desk.

As the governor said, this rulemaking process must be fair, transparent and science-based. So far, it has not lived up to that standard — not in the back-room dealing between the drilling industry and regulators; not in the state’s badly flawed and unscientific draft plan; and not in the modified proposal the Cuomo administration floated last month in The New York Times. As you know, that plan would limit drilling to several counties near the Pennsylvania border, or to areas where the Marcellus shale is 2,000 feet below the surface and the shale is at least 1,000 feet below any water supplies.

EWG has carefully reviewed thousands of pages of the draft plan, government reports and industry studies, and we can find no scientific basis for the idea that these limitations would be sufficient to protect New York’s water supplies, as the Cuomo administration claims.

In fact, a variety of evidence suggests that drilling 2,000 feet underground and more than 1,000 feet below water supplies would leave New York’s water sources very much at risk.
Consider that:

• A 1987 U.S. Environmental Protection Agency report to Congress found that a shale-gas well hydraulically fractured at a depth of more than 4,200 feet contaminated a water supply only 400 feet from the surface.
• A 2004 investigation by the state of Colorado found that an improperly cemented natural gas well drilled more than 6,500 feet deep and hydraulically fractured released natural gas and associated contaminants more than 4,000 feet underground, polluting surface water with unsafe levels of benzene, a known human carcinogen.
• Industry studies have found that oil and gas wells routinely develop leaks that allow gas and potentially associated contaminants to migrate from deep underground to the surface.
• The U.S. Geological Survey has found that the rock layers above the Marcellus Shale are already highly fractured by natural processes, providing pathways for contaminants to migrate upward into water supplies.
• The Geological Survey has also found that New York officials do not even know the locations of many underground water supplies.

Given the Geological Survey’s concerns and its status as one of our leading scientific agencies, EWG would like the agency to analyze Governor Cuomo’s modified drilling proposal before any decision is made.

As we’ve said before, New York cannot afford to drill first and ask questions later. New Yorkers deserve a plan backed by the best science, and a public review process that is truly fair and transparent. Only then can Governor Cuomo know how and whether shale-gas drilling can be conducted safely.
Thank you very much.