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On Fracking, the Cuomo Administration Must Slow Down


Little Pakistan
Photo by William Swet
Critics say hydraulic fracturing has caused damage to communities and the environment in neighboring states. Here, a truck near Dimock Penn., carries pipe to be used in the extraction of natural gas.

(For an opposing viewpoint, see The Cuomo Administration Strikes a Balance by S. Dennis Holbrook of the Independent Oil and Gas Association of New York.)

New York state's Fracking Express -- the Cuomo administration's controversial plan to fast-track high-volume hydraulic fracturing ("fracking") throughout the Marcellus Shale -- is in danger of jumping the tracks.

To his credit, Gov. Andrew Cuomo, who had a strong environmental record as attorney general, has stated: "New York state must ensure that, if and when the shale's natural gas is obtained, it does not come at the expense of human health or have adverse environmental impacts."

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And the governor's talented commissioner of the Department of Environmental Conservation, Joe Martens, insists that he is seeking to adopt the toughest and best regulatory safeguards in the nation. Martens argues that such regulations -- along with vigorous and fully funded permitting and enforcement operations -- will protect New York’s safe drinking water, clean air and beautiful landscapes.

That is indeed an ambitious goal.

But whether it can be achieved is very much an unanswered question.

On the Fast Track

Even under the best of circumstances, insuring that fracking can be done in a way that protects public health and the environment poses enormous challenges. In states around the country, we have watched the consequences of fracking-gone-wrong unfold -- from contaminated drinking water to destroyed property values to communities transformed into industrial zones.

In New York, the state's latest actions -- procedurally and substantively -- raise further doubts as to whether the state will be able to successfully deliver on its promise to advance fracking in a way that is environmentally sensitive and safe.

One thing is clear -- fast-tracking the process is not the way to get there.

On Sept. 28, the state prematurely issued proposed rules that would regulate fracking even before it has completed the legally required environmental review process on which future environmental safeguards are supposed to be based. Public comments on the highly technical rulemaking proposal are due on Dec. 12 -- the same day as the deadline for public comments on the state's 1,500 page draft environmental impact study of fracking.

This timetable undercuts the spirit and intent -- if not the letter -- of New York's landmark environmental review law, which is designed to provide information that decision-makers need to knowbeforethey formulate policies. And combining the environmental review process and the rule-making process creates a hardship for concerned citizens and others who have been given little time to meaningfully review and comment on both the massive environmental study and the complex proposed regulatory program.

To remedy this failing, the state should, at a minimum, extend the comment period on the proposed fracking rules for 60 days, until Feb. 12.

Along with these procedural missteps has come a boatload of unresolved substantive issues and unanswered questions.

Gaps in the Plan

Take, for example, the proposed provisions for safeguarding the unfiltered drinking water supplies of New York City and Syracuse from the dangers of fracking. The proposal wisely places the forested watersheds of these two drinking water systems off-limits to well-pad development, correctly calculating that the economic and environmental risks to these unfiltered systems is simply too great.

But rather than fully safeguard these systems, which supply water to more than half the state's populations (including all of New York City), the proposal leaves gaping holes in the rules' protective blanket.

A case in point, highlighted at recent City Council hearings by Environmental Protection Committee chairman James Gennaro, is the stunning lack of protection for the aqueducts and tunnels that carry water from the reservoirs to our homes and apartments. These tunnels fall outside of watershed boundaries and their surrounding lands would be open to drilling. But such infrastructure is vulnerable to both structural damage and pollutant infiltration from fracking activities.

For these reasons, consultants to New York City who studied the issue called for a seven-mile protective buffer around the city's upstate water tunnels. In contrast, the state's current proposal provides for only a soft protective zone less than a quarter of a mile around these essential water structures.

The state's environmental plans also contain gaps when it comes to protecting other upstate public drinking water supplies and state parklands.

Then there are the unresolved issues. Chief among them: What is the state's plan for safely disposing of the hundreds of millions of gallons of contaminated fracking fluids and other hazardous wastes that would be generated every year in New York if big oil and gas companies are given the green light?

The environmental study fails to answer that question satisfactorily.

Take a Test

Yet another shortcoming of the state's fracking study is its failure to fairly explore the alternative of advancing a drilling program as a demonstration only -- as a pilot project of sorts, with permitting limited to a small number of wells, at least for the first three years.

Such an approach would enable the state to prove to the public that it might be possible to operate a carefully controlled drilling program in a manner that would effectively safeguard New York's communities and environmental resources. Under this alternative approach, the state would select only those drilling companies with the best track record, who agree to implement the most stringent environmental controls, and who are willing to work with communities to address their local concerns and special needs.

Nobody knows whether such a "demonstration project" would prove that fracking can be done safely in New York. But we do know that the business-as-usual, "trust us" approach to fracking has caused unacceptable environmental and community harm all over the country, including right next door in Pennsylvania. And we know we don't want those errors to be repeated in New York.

The Cuomo administration still has time to reconsider its approach and to propose a more limited, more protective fracking plan.

But in order to do that, it must pump the brakes on the Fracking Express.

Eric Goldstein is a senior attorney in the New York office of the Natural Resources Defense Council and director of New York City Environment.

On Fracking, the Cuomo Administration Strikes a Balance


Little Pakistan
Photo by William Sweet
While New York has been considering wehteh to allow gas drilling, many sites have been developed in adjoining states, such as this one near Dimock, Penn.

(For an opposing viewpoint, see The Cuomo Administration Must Slow Down by Eric Goldstein of the Natural Resources Defense Council.)

The possible expansion of natural gas development in New York's Southern Tier has polarized New Yorkers like few issues have in recent years. On Jan. 1, Gov. Andrew Cuomo and his administration inherited the matter. Whatever they decided, they would have to deal with the issue directly, calmly and with political courage. After all, drilling opponents had already spent been two years cultivating opposition against hydraulic fracture stimulation technology.

Shortly after taking office, Cuomo appointed long-time Open Space Institute head Joe Martens as commissioner of the Department of Environmental Conservation -- a decision immediately hailed by environmental groups as a key to their defeat of expanded natural gas exploration in New York.

 

Oil and gas developers also wondered what the Martens appointment would mean to the industry, which employs about 4,500 people across the state. The industry watched as business and opportunity fled New York to work in the same Marcellus Shale gas field beneath Pennsylvania, West Virginia and Ohio.

The DEC Deliberates

Martens was previously an open critic of natural gas extraction using hydraulic fracturing. But he also has a great deal of energy policy experience and understands the relationship between energy, the environment and the economy. In fact, in his announcement of the appointment, the governor said, "Joe knows how to strike the critical balance between defending our natural resources from pollution and destruction while at the same time fostering a climate of economic renewal and growth."

It seems the commissioner is doing just that. Fast-forward nine months from his appointment and we have seen the birth of a new draft of drilling permit rules – known as the Supplemental Generic Environmental Impact Statement, or SGEIS. The administration has allowed Department of Environmental Conservation experts, including geologists and engineers, to modify the statement, resulting in the most stringent set of rules in the nation, and perhaps the world. Whether they are too stringent, and therefore restrictive of business development, remains to be determined. Industry is still evaluating the 1,500-page document. The public comment period ends Dec. 12.

A Proven Technology

In total it has been three years since a previous administration enacted a de facto moratorium on natural gas extraction using horizontal drilling and hydraulic fracturing. My own employer, Norse Energy Corp., has dealt with the consequences of this delay. Four years ago Norse decided to focus our exploration efforts on shale drilling in New York and hired an expert staff of surveyors, geologists, engineers, geophysicists, technicians, accountants, land agents and even hydrologists (to assure protection of water resources) to work in western and central New York. We even had plans to double our staffing and employ more than 100 people directly with hundreds more indirect jobs. Now instead of additions we have been forced to subtract -- reducing our workforce by more than half since the beginning of the year -- because expected opportunities went unrealized.

Protesters have focused on hydraulic fracturing. The term fracking has become a rally point as if it were a new, unknown technology. In fact, hydraulic fracturing has been in commercial use for about 60 years, and it has been used to free oil and natural gas resources more than one million times in 32 states nationwide, and here in New York, too. Ironically, water well drillers often hydraulically fracture their wells to improve production.

Natural gas is part of the historical fabric of New York. In 1821, the nation's first gas well was "dug" in Fredonia, in western New York near the banks of Lake Erie. Natural gas became a commercially viable energy source shortly thereafter. Since then, 75,000 oil and gas wells have been drilled in New York.

Today, there are more than 14,000 wells that are still active and operating safely. The vast majority of these wells have been hydraulically fractured. You can drive across the Southern Tier and see the wellheads on farms, schoolyards, college campuses and church grounds. While a reclaimed Marcellus Shale well requires a larger footprint, it will not be an eyesore, especially when you consider what it will produce: jobs, tax revenue, royalty payments, energy independence and an economic boost that the Southern Tier has never seen before.

Natural gas also will be part of the nation’s energy future. A recent Massachusetts Institute of Technology study highlighted the significant role natural gas will have on the future of transportation, energy production and greenhouse gas reduction. The point here is that natural gas has been, and will remain, a positive component in our efforts to improve air quality and environmental quality in New York.

The governor and commissioner have vowed to let science rule the discussion, and so far they have done that. They both have cautioned that energy development must be deemed safe before it is allowed to expand in New York, but that the state also has energy and economic needs. New York is at a critical point as it pursues the safe development of natural gas deep underground -- ever mindful of protecting our precious natural resources closer to the surface.

The governor's administration has said balance is key. Our industry agrees.

S. Dennis Holbrook is executive vice president of Norse Energy in Buffalo and a director of the Independent Oil and Gas Association of New York.

City Shuts the 'Box' to Open Job Opportunities


dog
Photo by Andy Dayton

It's daunting enough to look for a job when there are over four unemployed workers for every opening. It's even harder when you desperately want work but have a criminal record -- as 65 million U.S. adults do.

Thankfully, New York City recently took steps to help reduce one of the obstacles people with criminal records face when applying for a job.

Last month, Mayor Michael Bloomberg issued an executive order ensuring that people with criminal convictions unrelated to the job in question do not face an unnecessary barrier to employment with the New York City government. In his speech on the $127-million Young Men's Initiative, Bloomberg said, "I believe that as long as you have served your time and stayed clean, and the crime you committed isn't related to the job you're seeking or a threat to public safety, you deserve a second chance just like everyone else."

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Set to go into effect early next month, New York City's measure will remove the box on job applications that requires candidates to disclose a criminal record upfront. Known as "banning the box," the city policy will be the first of its kind in the state, setting an example for the state and the country. (While a statewide ban the box bill stalled in committee last year, State Sen. Ruth Hassell-Thompson is expected to reintroduce the bill in the next legislative session.)

A Closed Door

Almost 25 years ago, the Equal Employment Opportunity Commission said that because minorities are disproportionately represented in the criminal justice system, blanket no-hire policies against people with criminal records are discriminatory and illegal under Title VII of the Civil Rights Act of 1964.

Unfortunately, two decades later, many companies still refuse to hire qualified people with a criminal record, no matter how old or minor, and the doors are closing faster on applicants in the sputtering economy.

For communities of color, the trend is devastating. The unemployment rates for people of color already vastly exceed those of whites -- averaging 16.0 percent for African Americans and 12.5 percent for Latinos nationally last year, compared with 8.7 percent for whites. In addition, workers of color are disproportionately represented in the criminal justice system; arrest rates for African Americans are more than twice those of whites, for example. With over 90 percent of employers now conducting criminal background checks when hiring, up from 51 percent in 1996, even getting an interview is a long shot for millions of black and Latino workers.

New York City among a small but growing handful of jurisdictions that have recognized the societal consequences of these trends, including the impact on public safety, and so are offering people who make amends a second chance at a new way of life.

Banning the Box

Over two dozen cities and six states have adopted "ban the box" policies and other model hiring reforms to reduce employment barriers for people with records. In the broadest law in the nation, Massachusetts has moved the criminal background check to the end of the hiring process for all public and private employers, eliminating the need for applicants to check a box on an application if they have a criminal history. Such innovative policies make criminal background checks fairer without compromising safety and security on the job.

New York's new policy prohibits agencies from asking about an applicant's conviction record on preliminary application documents or in the initial interview. After the first interview, agencies may ask applicants to disclose any prior criminal convictions.

Moving the question until later in the process allows workers to be considered on their merits, reduces the risk that agencies would use overbroad or blanket policies that run afoul of federal and state civil rights laws, and still ensures that background checks are performed when necessary to ensure safety and security.

In Need of an Update

The decades old federal guidelines that make blanket no-hire policies illegal are outdated, and as more Americans with criminal histories seek jobs than ever before, employers are hardly greeting them with open arms. A recent survey by the National Employment Law Project found hundreds of illegal and exclusionary job ads posted on Craigslist by staffing agencies and employers around the country. The ads say things like, "You must not have any felony or misdemeanor convictions on your record. Period."

Such policies discriminate against jobseekers and block out candidates who may be exceptionally qualified for a job. They also ignore a growing body of research that has shown that people with old records pose no more risk than someone without a record.

The Equal Employment Opportunity Commission held a pivotal public meeting in July that explored ways to balance the rights of workers with the obligations of employers to maintain safe and secure workplaces. As it updates its guidelines to reflect the proliferation of criminal background checks for employment, the agency should reinforce the idea that blanket screenings are unacceptable and illegal, and that for applicants with records, employers must take into account the specific job responsibilities and the nature of an individual's record, as well as an applicant's rehabilitation.

New York state law requires employers to consider these factors -- as well as the public policy of encouraging employment of people with criminal records -- when making a hiring decision. New York, to build on Bloomberg's guidance, should strive to ban the box for state agencies and, gradually, private contractors too.

These reforms to hiring practices will help employers follow the law, reduce discrimination and keep the workplace safe. They will also help put Americans back to work -- something the economy sure could use right about now.

Madeline Neighly is an attorney, based in New York, with the National Employment Law Project, which has advocated for "ban the box" measures across the country.



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