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Is New York's Budget Deficit Leading it to Adopt Natural Gas Drilling Practices That Threaten Drinking Water?

The state's environmental regulations are supposed to ensure that drilling in the Marcellus Shale proceeds smoothly; they don't even come close.

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Pressure on Paterson and New York's DEC is not just coming from environmentalists. On Jan. 7 Chesapeake Energy, one of the nation’s leading natural gas companies, issued a statement warning New York state that its slow legislative progress could drive drillers to focus their efforts elsewhere. “The measures proposed ... will be more burdensome than any of those placed on our industry throughout the United States,” Chesapeake said in public comments. Its sentiments echo those of Fortuna Energy, which last year announced it would redirect the majority of its Marcellus efforts away from New York.

Chesapeake’s accusations may be true (New York’s regulations are considerably stronger than those in Pennsylvania, for example). But they also point to another significant problem with the state’s dSGEIS: It’s cut from a legislative cloth custom-tailored to the gas industry’s needs.

Indeed, gas exploration is exempt from portions of the Safe Drinking Water Act, the Clean Water Act, the Resource Conservation and Recovery Act, CERCLA (Superfund), the Clean Air Act and the National Environmental Policy Act.

Closely examined, many of these exemptions invoke some peculiar logic. In one portion of the Safe Drinking Water Act, the meaning of "Underground Injection" (the “subsurface emplacement of fluids by well injection”) seems to change magically when it applies to hydraulic fracturing: “Underground injection excludes (i) injection of natural gas for purposes of storage; and (ii) injection of fracturing fluids (other than diesel fuels) related to oil, gas, or geothermal production activities.” This accommodation has nothing to do with the process by which water is injected during hydraulic fracturing. Rather, the method is simply exempt by definition.

Similarly, in the Clean Water Act, the definition of “pollutant” has been adjusted to conveniently exclude fracking fluids. And descriptions of “hazardous waste" -- carefully outlined in the Resource Conservation and Recovery Act -- do not apply to “drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil or natural gas or geothermal energy….” New York’s impact statement, based largely on regulations from 1992, does not address these issues.

“You basically have this 300-pound beast running around, with very little in the way of control,” Helen Slottje, an environmental lawyer based in Upstate New York, told me. “The natural gas industry will tell you 'We follow every regulation.’ Well, it’s very easy to follow regulations when they say you’re exempt."

New York’s dSGEIS does not impose enough “musts" on the gas industry, Slottje added. This is mostly because state agencies often adopt their legal definitions from federal environmental laws -- in this case, laws that are already riddled with loopholes.

“[The DEC is] the parent every teenager would dream of,” Slottje said. “They encourage you. They suggest. They want you to do this. It really would be in your best interest to do this. But they’re not going to check up on you.”

Still, while many agree that its accommodations to industry represent a large problem with the dSGEIS, others think that the document’s failure to address drilling’s cumulative environmental impacts is far worse.

Such impacts, according to New York City’s Department of Environmental Protection (NYCDEP), include: a "high degree of invasive industrialization that carries inherent short-term and cumulative environmental risks"; the possibility that drilling will “contaminate water supplies” (New York’s DEC, along with a host of other environmental agencies across the country, has denied this charge); and the potential to “damage water supply infrastructure located within and outside the New York City watershed."

In a Rapid Impact Assessment Report published last September, the NYCDEP concluded that drilling in the Marcellus poses a significant threat to New York City’s watershed. “While the probability of contamination from any given well and fracture operation may be quite low," the document states, “the likelihood increases as more wells are drilled in the region....Even a relatively minor contamination incident could negatively impact the public confidence in the overall quality of NYC’s unfiltered water supply.”