Why 'Safe' Regulation of Fracking in New York Is a Fiction

This article was published in partnership with GlobalPossibilities.org.

A New York State commissioned Health Review is central to the debate over whether fracking can be done safely in New York. The long awaited release of the Review findings, commissioned in September by the state Department of Health (DOH) at Governor Andrew Cuomo's behest, will inform the Governor's impending decision about whether or not to go forward with proposed fracking guidelines, the prelude to permits to frack New York State. 

The Governor has promised that he will only allow fracking if regulations can be developed to assure "it be done safely," which is often asserted, recently for example, by outgoing Energy Secretary, Stephen Chu. But the perennial promises of safer regulations fail to account for fracking as the next in an ever-growing and ever more toxic series of health-damaging industrial outputs that people inhale, eat, or absorb into their skin, guts, and brains. When industry has blocked the EPA from studying or regulating 70,000 chemicals, (from BPA and flame retardants to potent neurotoxins), since 1975, why would regulating fracking be possible?

The Safe Regulation Fiction

Posing a safety debate tempts people to ignore the unsavory thirty-year history of industry blocking regulations aiming to protect public health. Instead of regulation, public officials have routinely allowed industries to unleash novel health hazards without either scientific study, protective legislation, accountability, or any plan for compensation for instances of harm. Whether it's unstudied toxic chemicals in personal products, novel genetic materials in GMO foods, Corexit in the Gulf, antibiotic overuse in mass agriculture, or the latest iteration -- radioactive metals to be recycled as zippers and eyeglasses, when government fails to study, regulate, or plan for the costs or waste management of industrial outputs, the burden of health harms and health costs is transferred to ordinary people. The singular focus on the economic bottom line pervasively masks the health bottom line. In the current regulatory and legislative context, the presumption that any dangerous but profitable practice could be regulated to be "done safely" is a PR inspired fiction.

If government regulators or legislators (at federal, state, or municipal levels) had been willing or able to instate and enforce fracking regulations, they would have started by repealing the Halliburton Loophole, which exempts fracking chemicals from all major EPA regulations. By what mechanism do would-be regulators propose to improve the safety of carcinogenic chemicals that infiltrate underground aquifers after they're exempted from the Safe Drinking Water Act? Halliburton cement pipes, which failed at Deepwater Horizon and are known to always fail are not the cure-all for breached regulations.

Even if legislators had been able to properly classify fracking chemicals as what they are, namely "hazardous waste," rather than compromise to designate them as "special," (and later approve their use to de-ice public roads), that could have begun a public dialogue about what safe regulations might consist of. But the question is moot. If fracking could be done safely, health and environmental studies and planning would still be ongoing to determine whether and how. But such studies are not being done. Instead fracking is being done.

The View From Pennsylvania

In Pennsylvania, where all of the impacts of unregulated fracking are on full display, suburban Philadelphia Republican State Senator Stewart Greenleaf has recently called for a $2 million health impacts study of fracking-related health symptoms, now that these have become more prevalent. Just when Pennsylvanians most need health care for these and other ills, Governor Tom Corbett has decided to economize by refusing to participate in the Affordable Care Act, despite the supposed fracking sparked economic boom with its promised yields of untold wealth for the state and its citizens. 

Pennsylvania's Department of Environmental Protection (DEP) has routinely ignored citizen health complaints and has failed to collect data on reports of fracking related illness. Damascus Citizens for Sustainable Energy, a PA based advocacy group is planning to undertake that data collection soon.

The Dance of New York State Officialdom

If the Governor ends the current fracking moratorium, adopts the current fracking guidelines and begins permitting, one pressing question will be: Who will pick up the tab for any fracking related health problems? Currently, no one at the state level has addressed that question. A comprehensive health impact assessment would be needed to first determine risk, with the Department of Environment Conservation (DEC) accountable for devising safeguards. But as time runs out on the upcoming February 27 deadline (to accept or reject the current DEC proposed fracking guidelines), there is no such assessment and no such plan. Health related questions and concerns posed during the four-year and one-half year development of the guidelines remain unanswered. Nor did the state officials appear to be ready to answer any health questions at a budget meeting in Albany this past week.

"The experts will make their recommendations in that regard, and that would establish what surveillance, if any, is needed," said DOH Commissioner Nirav Shah, MD, characterizing the outcome of the Health Review he commissioned as unknown to him, even when the experts he hired say the review has been in his hands for two months.

The three nationally recognized health experts-- Richard Jackson, Chairman of Environmental Sciences at the UCLA School of Public Health, Lynn Goldman, MD, Dean of George Washington University's School of Public Health, and John Adgate PhD, MSPH, Chairman of Environmental and Occupational Health at the Colorado School of Public Health, conducted the requested review -- albeit an abbreviated one -- months ago. The Review was not the transparent and comprehensive health assessment that New York Health Professionals, a statewide organization of physicians and scientists, had requested. In fact, the reviewers-though highly qualified, were barely given time -- a mere 24 hours of work apiece in a single week -- to consider the health implications of fracking in one of this country's most populous states.

From the outset, the state's secrecy raised questions about what the experts were asked to review. Were they mandated to look into the full extent of the science and the risks? Or were they invited merely to review the DOH's own health assessment within the DEC proposed fracking guidelines? If the experts were reviewing the DOH health assessment, then 24 hours would have been over ample-since there is neither an assessment nor any substantive mention of health in the existing guidelines. This lead State Senator Tony Avella to comment on February 4th that, "My concern is that the DEC review was nothing, and the outside scientists were asked to look at this, and they are reviewing nothing." Others share his concern that once belatedly released, the Review could turn out to be little more than a placebo-a Health Review if you believe it is.

Moreover, the state faces lawsuits for its premature issuance of the DEC proposed guidelines prior to incorporating the completed Health Review (along with any plans to address public health risks it surfaces.) The brief mandated public comment period on the guidelines was inconveniently scheduled by the DEC to occur during the recent Christmas holidays, perhaps to escape public scrutiny. Nevertheless, the 2013 public comments and concerns far exceeded even the impressive first round of public comments to an earlier draft; sixty-four thousand comments were filed by early 2012. Though mandated by law to respond to all comments, the DEC neither addressed nor referenced the first round of comments in the re-issued guidelines it released in mid-December of 2012. A new total of 204,000 public comments were submitted by the January 11, 2013 deadline with boxes of them hand carried to Albany by Yoko Ono, Sean Lennon, and Sandra Steingraber, who founded and heads the coalition group, New Yorkers Against Fracking.

Since NY's Governor Cuomo has long assured the public that science would be the key determinant of whether or not fracking will be allowed in New York, the outcome of the expert Health Review has been presumed to be one of the key factors in his decision.

But the 270,000 unaddressed comments, the lack of planning, the refusal to schedule or attend legally mandated public meetings, and the secrecy around the Health Review process failed to instill confidence in the DEC's ability to competently safeguard public health from the latest in the long parade of untested, unquestioned, and largely unregulated industrial novelties. While it's never been quantified whether fracking's combination of chemicals, radioactivity, heavy metals, ozone, and methane are more health damaging than, say, GMOs or radioactive belt buckles, one thing is certain: No one would not want to participate in a health experiment to find out.

The deeper question is: How can regulators offer assurances that they will "do fracking safely" when as part of the process, they avoid those they serve? DEC Commissioner Joe Martens' reported refusal to reply to written inquiries by Sandra Steingraber, the award-winning PhD scientist and highly regarded advocate and leader, is consistent with the overall pattern of unresponsiveness. As participants and protesters gathered for the recent hearings in Albany, Steingraber approached Martens to speak with him, an entirely appropriate action prior to a public hearing on a topic of public interest. What's inappropriate is that she was threatened with arrest. (You can watch their encounter here.) 

When hundreds of thousands of New Yorkers take the time to exercise their rights to engage in a legally mandated approval process with the officials who serve them, responsible officials would want to participate, listen, and act responsively rather than stonewall and send out the muscle. Irresponsible ones should not be regarded as credible when they offer assurances of safety. In the next two weeks, New Yorkers will finally learn what the Health Review covers, what it contains, and whether or not New York State officials will claim that they can regulate fracking. But the history of regulating all toxic industries, including fracking in other states, shows that they can't.