A RETROSPECTIVE LOOK AT THE FRACKING BAN IN NEW YORK
Yale School of Forestry and Environmental Studies
Veronique Bourg-­‐Meyer -­‐ April 2015
Introduction.............................................................................. 3
The problem............................................................................. 4
Defining the problem............................................................................ 4
Quantifying the problem.......................................................................5
Understanding the fear........................................................................ 9
Industry pushback and additional barriers....................................... 10
Goals .......................................................................................12
Ban...................................................................................................... 12
Regulate.............................................................................................. 13
“fundies” vs. “realos” ......................................................................... 14
Strategies............................................................................... 14
The context........................................................................................ 15
Lobbying and playing the watch........................................................ 16
The Shift – Unity behind health..........................................................20
Organizing at the grassroots level.....................................................22
Land use bans.....................................................................................25
Other factors .......................................................................... 29
Going the distance................................................................. 31
Outcome? A durable win? ...................................................... 31
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Introduction
On December 17, 2014, in a move that stunned the environmental community and the oil and gas industry alike, Joseph Martens, the Commissioner of the Department of Environmental Conservation of New York (DEC) announced a statewide ban on high volume hydraulic fracturing. This announcement followed a declaration by Dr. Howard A. Zucker, Acting Commissioner of Health that his team’s “examination had found ‘signi1icant public health risks’ associated with fracking.”1 Commissioner Zucker’s announcement marked the Pinal step in a review process of fracking started in 2008, and supported by a long-­‐awaited report by the New York Department of Health (DOH) concluding that there was “insuf1icient scienti1ic information” to determine the overall health risk associated with fracking, and recommending that “High Volume Hydraulic Fracturing should not proceed in New York State.”2 This decision was hailed as a major victory by environmental and health groups, bringing to a close a campaign that was seven years in the making; seven years during which campaigners from diverse environmental organizations planted the seeds for a grassroots movement to grow. In this paper, I hope to show how this historic ban did not result from a single strategy, but rather resulted from several simultaneous, and seemingly contradictory strategies led by very different groups. 1 T. Kaplan – Citing Health Risks, Cuomo Bans Fracking in New York State – New York Times – December 2014
2 H. Zucker, New York State Department of Health – A Public Health Review of High Volume Hydraulic Fracturing For Shale Gas Development in the State of
New York – December 2014
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The problem
Defining the problem
Hydraulic fracturing refers to an unconventional oil and gas extraction technique: high volumes of water, chemicals, and proppant are injected underground under extreme pressure to create fractures in the bedrock, and facilitate the Plow of oil and gas out of a reservoir with low permeability. Hydraulic fracturing is not a new technique; New York saw its Pirst well “fracked” in 1948. However, innovations in directional drilling, a technique borrowed from the offshore industry, allowed the use of hydraulic fracturing on land to make Pinancial sense: it extended the surface of the well in contact with potential pockets of oil and/or gas horizontally along thin shale layers. Industry ofPicials will often use this narrow dePinition of hydraulic fracturing so that when they speak of hydraulic fracturing, they generally refer to the act of fracturing the bedrock itself. This dePinition, while technically accurate, does not rePlect the common meaning of the term. In this paper, I will refer to fracking and high volume hydraulic fracturing (HVHF), interchangeably, to designate hydraulic fracturing and directional drilling, as well as the installation of the surface infrastructure and superstructure required for oil and gas extraction from the Marcellus and Utica shales in New York without which fracking cannot occur. Vero Bourg-Meyer | 4
Quantifying the problem
New York sits atop parts of the Marcellus Shale; the largest shale formation in the United States. The Marcellus runs through Ohio, West Virginia, Pennsylvania, and Maryland. New York has a history of oil, gas, and mining with 75,000 wells drilled since the late 1800’s, and 14,000 wells still active.3 However, fracking differs appreciably from conventional oil and gas extraction. FIGURE 1: THE MARCELLUS SHALE -­‐ SOURCE: MARCELLUS CENTER FOR OUTREACH AND RESEARCH
First, the pace of development is so rapid that some have compared it to the gold rush. Neighboring Pennsylvania surpassed Texas as the largest domestic producer of shale gas in 2012, and as a whole, neighboring states within the Marcellus produced 3.7 trillion cubic feet (TCF) of shale gas in 2013, or 34% of the US production.4 Shale gas now supports roughly half of all natural gas domestic production5 . Further, if Pennsylvania were a standalone country, it would now be the third largest producer of natural gas in the world before Canada.6 From January 1, 2005 to the date of writing 3 DEC webpage – accessed on April 25, 2015 – http://www.dec.ny.gov/energy/46288.html
4 U.S. Energy Information Administration – Data source: Form EIA-23L, Annual Survey of Domestic Oil and Gas Reserves, 2012 and 2013 – See table 1 in
appendix.
5 Id.
6 Francis O’Sullivan (Massachusetts Institute of Technology) – presentation at the Yale School of Forestry and Environmental Studies on November 20, 2014
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this report, April 26, 2015, there have been 6,109 shale gas wells drilled in Pennsylvania, and a dozen more unconventional oil and gas wells7. Of those shale gas wells, almost 60% are located in Bradford County, directly across the border from NY, south of Ithaca.8 This proximity to PA communities served both to increase knowledge about impacts in the anti-­‐fracking camp, and to heighten the sentiment that such development was a Pinancial boon on the pro-­‐fracking side of the debate.
The size of the oil and gas reserves in the Marcellus shale has varied through time, with estimates ranging FIGURE 2: THE PACE OF DEVELOPMENT IS FUELED BY RAPIDLY GROWING ESTIMATES from 64.9 to 870 TCF – OF S HALE G AS R ESERVES .
lower estimates being the most recent ones issued by the US Energy Information Administration and US Geological Survey. Court decisions made in the context of this campaign have also cited 489 TCF.9 For comparison, the national consumption of natural gas (including shale gas) was 26 TCF in 7 Pennsylvania Department of Environmental Protection Office of Oil and Gas Management Database – retrieved online on April 26, 2015
8 Id.
9 Anschutz Exploration Corp. v. Town of Dryden, 2012 N.Y. Slip Op. 22037 (Sup Ct, Tompkins Co. February 21, 2012)
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201410 , and the size of the domestic reserve of natural gas (including shale gas) in the US is currently estimated at 359 TCF.11 Clearly the magnitude of the potential reserves created a signiPicant barrier for activists to overcome.
Other factors inPluencing the appetite of industry for fracking in NY include “the proximity of high natural gas demand markets in New York, New Jersey and New England, and the construction of the Millennium Pipeline through the Southern Tier” according to the DEC.12 Importantly, NY is a voracious natural gas consumer; the fourth largest in the country.
Second, fracking is largely unregulated at the federal level: the Cheney Amendment to the Energy Policy Act of 2005, also nicknamed by activists the “Halliburton loophole,” exempted the industry from obligations under the Safe Drinking Water Act, and other major exemptions exist from federal statutes, including the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, the National Environmental Policy Act, or the Comprehensive Environmental Response, Compensation, and Liability Act. States retain jurisdiction to regulate a number of the issues outside of the scope of federal regulation. In that context, NY sought to regulate spacing issues between wells that would allow the industry to move forward with development in 2008; an opportunity for environmental groups to contribute to the debate, and to obtain a de facto moratorium on drilling. 10 US Energy Information Administration – See graph 1 in appendix.
11 Id.
12 DEC webpage – accessed on April 25, 2015 – http://www.dec.ny.gov/energy/46288.html
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Lastly, as opposed to conventional techniques, fracking is spatially dense. Each pad can contain about 4 to 10 wells, and pads are located in a crisscross pattern following the direction of the shale formation.13 In NY, the density of residential areas, and the fairly dense agricultural setting – when compared to western settings – make fracking activities a speciPic threat as it gives industry the potential power to industrialize rural and residential communities. As Judith Enck, Governor Patterson’s former deputy secretary for the environment put it in an interview with New York Times (NYT) reporter Peter Appelbome in 2008, “we’re not Wyoming, no offense to Wyoming.”14
FIGURE 3: PHOTO OF A FRACKING FIELD FROM BRUCE GORDON/ECOFLIGHT – SOURCE: US WATER ALLIANCE
13 Dr. Anthony Ingraffea on Hydraulic Fracturing’s Myths and Realities – Talk at Center for International Studies of the University of Chicago on January 23,
2014
14 P. Applebome – The Light Is Green, and Yellow, on Drilling – New York Times – July 2008
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Understanding the fear
Some impacts feared by communities are speciPic to fracking. Others are just the consequence of oil and gas extraction. However, by now the reader should get a sense that impacts are compounded by the spatial density, intensity, pace, and potential magnitude of development. Impacts cited by residents and researchers include noise from operations (compression, drilling, Plaring, seismic, trafPic), air pollution from trucks, from wells, from storage areas, and from disposal areas, dust, toxic spills, consumptive water use, illegal waste disposal/midnight dumping of produced water and Plow-­‐back water, decrease in property values, landscape modiPications, social changes from temporary men camps (prostitution, drugs, sexual assaults), habitat fragmentation, methane leaks from faulty wells, old wells, or existing pockets of shallow methane, explosions, light, and strain on public infrastructure (roads, water, wastewater).15 Of particular concern are the local air pollution issues and the large quantities of water used for the hydraulic fracturing activity; roughly Pive million gallons per well, or seven and a half Olympic swimming pools although it can vary from two to 20 million gallons per well.16 Produced water has sometimes been shown to contain radioactive elements, some toxics like benzene (a known human carcinogen17), and very high salinity, all picked up deep underneath the earth in addition to the chemicals initially added to the mix to enhance 15 For an exhaustive list of impacts including academic and community sources, please refer to the Yale Center for Environmental Law and Policy website.
16 Robert B. Jackson, Avner Vengosh, J. William Carey, Richard J. Davies, Thomas H. Darrah, Francis O’Sullivan, and Gabrielle Petron - The Environmental
Costs and Benefits of Fracking - Annu. Rev. Environ. Resour. 2014. 39:327–62
17 US Department of Labor’s Occupational Safety and Health Administration - www.osha.gov/SLTC/benzene/
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operations18. These large quantities of water then need to be treated, which activists insisted during the campaign NY does not have the capacity to do. Industry pushback and additional barriers
The power of the oil and gas industry to inPluence policymaking needs not be demonstrated. In the case of fracking, the Halliburton loophole illustrated its reach at the federal level. At the state level, several newspapers and organizations like the New York Public Interest Group reported the links between the state legislature, the governor’s ofPice, and oil and gas lobbyists.19 The industry’s signiPicant spending capacity was also oddly illustrated when Chesapeake Energy gave 26 million dollars to the Sierra Club to Pinance the Beyond Coal campaign.20 While the Sierra Club eventually cut ties with Chesapeake, it created a tension between several parts of the organization at the national level and its members in the Southern Tier asking questions about the safety of fracking. Beyond industry itself, several groups of landowners in the Southern Tier were hoping to proPit from leases, and pressing the DEC to move regulations along according to Pete Grannis, former DEC commissioner.21 Throughout my research, the perception both from activists and from local residents was that these communities are poorer than others in the region. While this perception 18 For an exhaustive list of impacts including academic and community sources, please refer to the Yale Center for Environmental Law and Policy website.
19 T. Kaplan – Millions Spent in Albany Fight to Drill for Gas – New York Times – November 2011, and D. Hakim – Cuomo Proposal Would Restrict Gas Drilling
to a Struggling Area New York Times – June 2012
20 F. Barringer – Answering for Taking a Driller’s Cash – New York Times – February 2012
21 M. Baca – Interview: Former NY Environmental Commissioner Pete Grannis on Gas Drilling – ProPublica – November 2010
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holds true at the very micro level in urban areas like some neighborhoods in Binghamton, data show that there is a much greater number of residents living in poverty in the more densely urbanized areas in New york as illustrated in the two maps below. FIGURE 4: PERCENTAGE BELOW THE POVERTY LINE – SOURCE: NYT
FIGURE 5: NUMBER LIVING IN POVERTY – SOURCE: NYT
Nevertheless, the prospect of additional jobs brought by a new industry was attractive to some residents, and an important factor to consider in this campaign. According to Marley Urdanick, local resident of Binghamton, “people were ready to move to Florida!”; an illustration that landowners had high expectations for the Pinancial return that fracking would bring. This is also an illustration of a Vero Bourg-Meyer | 11
central issue with oil and gas extraction within communities; those who proPit have the liberty to move, leaving those who cannot afford it or don’t want to move to deal with the repercussions. Goals
Two groups emerged throughout the campaign seeking different, and seemingly contradictory goals. One group led by the Sierra Club, the Natural Resources Defense Council (NRDC), and Catskill Mountainkeeper started campaigning in 2008, seeking to set in place tough regulations. Another group, a coalition named New Yorkers Against Fracking (NYAF) came onto the scene in 2012, bringing together 250 existing campaign organizations calling for a full ban of HVHF in NY. In parallel, and from 2005 onward, several NY communities organized; some calling for a ban statewide, others merely questioning whether fracking was a good choice for their speciPic town or county. Ban
Food and Water Watch (FWW) was among the Pirst organizations to call for an outright ban of HVHF in NY. In an interview with Alex Beauchamp, the Northeast Region Director for FWW, in April 2015, he argues, “you have to call for what you want, and not just what you think you can achieve, because you will lose some. Starting with a strong ask is the best strategy, and we didn’t believe that fracking could be done safely.” This echoed what Watershed Associates Inc., a consulting Pirm specializing in training negotiators for the private sector calls the “Most Desired Outcome.” Vero Bourg-Meyer | 12
According to Watersheds Associates, this technique is often why children will get what they want: because they ask for it. Alex Beauchamp further expressed the worry that at that time large environmental groups lining up behind some regulatory solution was problematic because it could give the governor and elected ofPicials a license to open the state up to fracking. This was, he says, the rationale to form a coalition that was explicitly calling for a ban.
Regulate
Early participants in this campaign like NRDC senior attorney Kate Sinding did not believe that a ban was possible: “when we 1irst started, when people talked about banning fracking, we thought it was a complete pipedream. That it would never happen.” Rationally then, and based on its experience, NRDC’s initial goal was to “put a moratorium in place and then to 1ight for the toughest regulations in the country,” including the exclusion of the most sensitive or important ecological areas.22 On July 23rd, 2008, they obtain an initial de facto moratorium, when Governor Paterson signs legislation on HVHF, and in parallel requires the DEC to conduct a Supplementary General Environmental Impact Statement (SGEIS). For companies to start drilling at that time was not impossible, but required individual environmental impact statements, so that the prohibitive cost temporarily halted fracking. This was a signiPicant milestone and victory because companies at that time had already paid “hundreds of millions of dollars in leasing fees to landowners.”23
22 Kate Sinding interview in April 2015
23 P. Applebome – The Light Is Green, and Yellow, on Drilling – New York Times – July 2008
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“fundies” vs. “realos”
The differences between the ban groups and the regulation groups illustrate what Imogen Zethoven, veteran campaigner and director of global sharks conservation with the Pew Charitable Trusts jokingly calls in her Australian accent the struggle of the “fundies” or fundamentalist/purists vs. the “realos” or compromise-­‐oriented groups.24 Generally, fundies are wary of realos because realos may agree to a compromise that is not an acceptable solution to the fundies, whereas the realos’ goal is often enhanced by the fundies because they open up the political spectrum. By pushing for more extreme positions, fundies make the realos’ compromises easier to attain. In this instance however, the realos goal, i.e. the moratorium sought by NRDC and the Sierra Club, was key in providing time for organizations like FWW and Frack Action to organize communities, and to amplify local activism statewide. The initial moratorium also set the stage for a successful fundies strategy because it transformed what could have been a campaign to reverse authorizations and licenses already granted to industry absent a moratorium, to a campaign to maintain a status quo: no drilling in NY. Kate Sinding agrees: “there is no way we would have a ban today if it wasn’t for SEQRA.”25 Strategies
From the goals detailed above come several institutional strategies. 24 Conversation at the Yale School of Forestry and Environmental Studies in April 2015
25 SEQRA refers to New York’s State Environmental Quality Review Act, the statute requiring environmental impact statements for certain state activities Environmental Conservation Law Sections 3-0301(1)(b), 3-0301(2)(m) and 8-0113
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The context
When fracking really became feasible on a commercial scale in 2005, landmen were sent out by gas companies to secure leases. Fueled by record high gas prices in 2008, community meetings intensiPied to understand what fracking entailed for the residents land, and according to local journalist Tom Wilber, for their pocketbooks. People were “seeking answers from of1icials from the [DEC] about how the impacts from shale gas development would be managed in New York. (…) They were not necessarily against fracking, but they had plenty of questions. What about public safety concerns, roads, and waste disposal?”26 Tom Wilber describes the initial response of the DEC representative as one echoed by the industry, one of certainty. “We had the DEC saying this was just sand and water, nothing harmful” says Roger Downs, Conservation Director with the Sierra Club Atlantic Chapter in an interview in April 2015. SigniPicantly, it is uncertainty about impacts that ultimately resulted in a ban in NY. On July 22nd 2008, ProPublica investigative journalist Abrahm Lustgarten published an article highlighting various ways in which the DEC was unprepared for fracking.27 His ongoing investigation had at that time prompted the DEC to reach out to industry to determine the chemical make up of fracking Pluids and to answer basic enquiries that resonated with environmental groups and communities: what about the waste? A day later, Governor Patterson issued the initial moratorium. This synchronicity highlights the crucial role of media in 26 http://tomwilber.blogspot.com/2014/12/how-fracking-got-stopped-in-new-york.html
27 A. Lustgarten – New York’s Gas Rush Poses Environmental Threat – ProPublica – July 2008
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inPluencing policy. When asked about his role in this campaign, Abrahm Lustgarten replied that he did not see himself as an activist, and that he would cover the other side of the story just as well.28 Nevertheless, Lustgarten’s interest in fracking was fortuitous for early groups lobbying for a moratorium. So was the explosion of a water well in Dimock, PA on January 1, 2009. It brought the theme of uncertainty front and center, and started galvanizing public opinion. Lobbying and playing the watch
As mentioned earlier, several large environmental groups successfully set out to obtain a moratorium in 2008. Their initial call for tough regulations was aimed at the legislature and the governor’s ofPice. They acted at the state level, a scale appropriate to obtain statewide regulations. Importantly, the governor may veto bills passed by the NY house and senate, making his ofPice a primary target for campaigning once the bill dealing with spacing passed in the legislature. In what she describes as really a lobbying strategy, Kate Sinding says, “we had access, and made our case, but the vast majority of people in the state had not heard about fracking.” Roger Downs recalls; “we started at the very beginning trying to 1igure out what the heck was going on. (…) I was getting a lot of calls from Western NY. [Members] were getting landmen at their door. (…) It was a very new concept, and we had to sort through that.”29 Evolving from an initial campaign to slow things down, the regulations groups kept lobbying at the 28 Conversation with Abrahm Lustgarten in April 2015
29 Interview with Roger Downs in April 2015
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state level. The draft SGEIS was released on September 30, 2009 and the DEC received comments until December 31, 2009. Kate Sinding remembers heightened grassroots activity in the fall of 2009, and groups growing and educating themselves on the issues, so that when the Pinal numbers came in, they took everyone by surprise: “14,000 comments at that time was way off the charts.” Both mainstream groups and local groups started getting involved in organizing communities, and an informal coalition was formed between both types of groups sharing information and coordinating some campaign events. In 2010, the movie Gasland came out, and in November 2010, the New York State Assembly passed a bill placing a legislative moratorium on HVHF but Governor Paterson vetoed it. A combination of lobbying by mainstream groups and grassroots activity organized by groups like Frack Action pressured the governor into issuing Executive Order #41 along with his veto: “Governor Paterson ordered DEC to conduct further environmental review to ensure that all environmental and public health impacts are mitigated or avoided and to present this information to the public for further review.”30 This extended review of environmental impacts through a continued SGEIS created once again a forum for the public to participate in the process through hearings and comments, and extended the moratorium. The DEC revised the draft SGEIS and made it available in July 2011, and then again after additional revisions on September 7, 2011. At the time of the Pirst moratorium, Kate Sinding recalls, “industry still believed that the 30 http://www.dec.ny.gov/energy/47554.html NY DEC Website - retrieved on March 28, 2015
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administration had every intention of going forward, but growing antipathy to fracking and the democratic base were political issues that they had to confront.”31 By 2009, the mainstream groups moved from a strategy aimed at tough regulations to a new primary strategic goal: extending the moratorium as long as possible, and using SEQR review process to garner activism. The message however was still one of environmental concern organized it seems around two main tenets; highlighting the gaps in knowledge, and questioning the rush into development. Also in 2010, the Environmental Protection Agency (EPA) announced that it would conduct a study investigating hydraulic fracturing and water quality. While EPA had conducted a prior study in 2004 concluding that “the injection of hydraulic fracturing 1luids into coalbed methane wells poses little or no threat to [US drinking waters],” it also had not tested any wells.32 Pressure from industry mounted as the American Petroleum Institute released a statement bashing the decision. “We expect the study to con1irm what 60 years of experience and investigation have already demonstrated: that hydraulic fracturing is a safe and well understood technology for producing oil and natural gas.”33 The industry PR machine countered the direct lobbying tactics of the regulations groups with lobbying of their own. The national press reports spending by the natural gas industry to the tune of $4.5 million between 2010 and 2012, in addition to spending on television ads, and contributions to lawmakers 31 Interview with Kate Sinding in April 2015
32 EPA report EPA 816-R-04-003 available online at http://www.epa.gov/ogwdw/uic/pdfs/cbmstudy_attach_uic_ch07_conclusions.pdf, and M. Soraghan –
Baffled About Fracking? You're Not Alone – New York Times – May 2011. Please note that here the EPA refers exclusively to the act of fracturing bedrock
rather than the whole gas extraction activity enabled by hydraulic fracturing.
33 Press release from the American Petroleum Institute on March 18, 2010
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and the governors’ ofPice.34 According to journalist T. Kaplan, during the same period, gas industry spent four times more on lobbying than environmental groups.35 Fracking supporters also organized their own coalition, Clean Growth Now. Both the ban groups and the regulations groups ended up using the SGEIS process to the fullest extent possible to delay the issuance of permits, and to make the case to state ofPicials that fracking was not in their view a viable solution for NY’s future. By the end of 2011, the DEC had received a total of 260,000 comments on the SGEIS and new draft regulations for the industry. All groups pushed their members to comment. During a community meeting in Ithaca on July 25, 2011, Helen Slottje, the attorney who Pirst encouraged communities to push for fracking bans at the town level summarized it well: “time is your friend.” Potential commenters received advice on how to best comment, what to say, from emotional messages of dissatisfaction, to letters to the editor or more substantive comments, where to send the comments, and most importantly they pushed the message that everybody should comment. The picture below shows Roger Downs at that same community meeting, explaining why everyone should comment, regardless of whether they would like the process banned entirely, or simply regulated. 34 T. Kaplan – Millions Spent in Albany Fight to Drill for Gas – New York Times – November 2011, and D. Hakim – Cuomo Proposal Would Restrict Gas Drilling
to a Struggling Area New York Times – June 2012
35 Id.
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FIGURE 6: SOURCE: SHALESHOCKMEDIA.ORG
The Shift – Unity behind health
In 2012, once again, the national press came to inPluence this campaign, albeit in a very distinct fashion from the informed breed of investigative journalism that had pushed the DEC to slow down in 2008. In June 2012, Governor Cuomo’s ofPice leaked to the New York Times a plan to create a pilot project and allow drilling in Pive counties – Broome, Chemung, Chenango, Steuben, and Tioga.36 The environmental community was unanimous; “you have the SGEIS in place, you can’t possibly say that it can be done safely at this time” says NRDC’s Kate Sinding. The pilot project was viewed as a sacriPice of Pive counties, and a signal that the administration had already made up its mind, despite the SGEIS. FWW’s Alex Beauchamp also describes this as a crucial moment. In a joint 36 D. Hakim – Cuomo Proposal Would Restrict Gas Drilling to a Struggling Area – New York Times – June 2012
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press conference with most large and small groups, the environmental community communicated to Governor Cuomo that the pilot program was “unacceptable,” and that groups would not “be divided by the administration.”37 According to Roger Downs, “everyone came together and declared ‘Not one well in NY!’ A line was drawn in the sand.”38 In response to a campaign escalation from all fronts, Governor Cuomo Pinally ordered the DOH to review impacts of fracking on health.
It is also at that time that the campaign message shifted from one of environmental protection to one of health. “We started seeing results from early studies out of Colorado and Pennsylvania suggesting that there are real reasons to be concerned” says Kate Sinding about the shift in messaging. Alex Beauchamp admits “we knew pretty early on that the more you made it about health, the better it was.” Campaigners credit the success of the health messaging to the willingness of academics to come out in the public sphere and share their concerns. Particularly, independent health professionals with groups like Concerned Health Professionals of NY led by NYAF co-­‐founder Sandra Steingraber, and comprising hundreds of medical professionals from the NY area, got involved as early as 2011, and called for a comprehensive health review. They made the case that there was cause for worry. “None of that works if it’s just environmentalists saying it” says Beauchamp. The DOH review order was an acknowledgement that the health message was the right one. 37 Interview with Kate Sinding in April 2015
38 Interview with Roger Downs in April 2015
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Organizing at the grassroots level
Grassroots activity evolved from uncoordinated actions at the community level, to a full statewide coalition in 2012. The goal of the coalition was to coordinate actions, amplify messaging, and grow the movement while putting extreme pressure on the governor. When talking about the NYAF coalition, FWW’s Alex Beauchamp says they had one advantage; “We’re not a paper tiger coalition, we had organizers on the ground. (…) There was a lot there with the grassroots already calling for a ban. (…) Really quickly we saw hundreds of groups come on board, which gave us some validity.”39 The focus on organizing translated into organizing events, rallies, and a simple three-­‐word message “Ban Fracking Now.” FIGURE 7: SOURCE: ECOWATCH
Most amusingly for observers, NYAF deployed this message through a tactic called “bird-­‐dogging.” “I wish there was a better word for it” says Alex Beauchamp, to describe the systematic haranguing of 39 Interview with Alex Beauchamp in April 2015
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Governor Cuomo by anti-­‐fracking protesters during his public appearances. “We did that for years,” he says, “we thought it was important that [Governor Cuomo] saw the fracking people everywhere he went so that he understood: this is never going to stop, ever. This is not going away, you’re not going to be able to just wait it out.”40 Organizers for all of the regions of the state, including the Hudson Valley, Albany, Binghamton, Ithaca, Syracuse, NYC, and Buffalo, enabled volunteers to get ready to protest on short notice, so much so that the governor changed the way he announced his public events Beauchamp says. On the day of the Pinal announcement to ban fracking, a visibly annoyed Cuomo said during the Cabinet meeting “I’ve been asked about fracking about 14,600 times, hum, again at various decibel levels (…) this has probably been the most emotion-­‐charged issue that I’ve ever experienced.” Over time, the coalition worked on extending the range of perspectives and narratives shared with the greater public. For instance, people seeking to join the NYAF coalition were automatically prompted to identify as faith leaders, chefs, farmers etc.
FIGURE 8: A SCREEN PRINT OF THE JOIN NYAF WEBSITE SOURCE: NYAF
40 Id.
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Of bringing more diverse perspectives, Beauchamp says: “a big piece of the campaign was building out constituency groups that are opposed to fracking but aren’t just the usual suspects. Food businesses, brewers, winery owners, they all brought a new angle.”41 This strategy attracted more individuals and groups to the coalition, and engaged the media, thus building public support and broadcasting a new message. Fracking became synonymous with “business killer” and “community destroyer,” which countered the industry’s job argument.
Other tactics used in pushing this strategy included public rallies, where celebrities Yoko Ono or Pete Seeger made appearances, or toolkits from Catskills Mountainkeeper for landowners to break leases after they have been signed. Roger Downs emphasizes that organizing around the three F I G U R E 9 : P E T E S E E G E R T O T H E GOVERNOR -­‐ SOURCE: CLEARWATER.ORG
words “ban fracking now” was very effective but also didn’t necessarily advance the nuance that was important to engage with every aspect of the public. “We got value from them pushing from the outside and we got incredible value in having groups like NRDC, the National Sierra Club, Earthworks, Earthjustice, really pushing away at how ridiculous the regulations were because it helped make it more relatable to politicians, the scientists and people that ended up becoming important allies.”
41 Id.
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Land use bans
The third signiPicant strategy in this campaign rests on an alteration of the scale of campaign actions. Instead of pursuing a ban squarely at the state level, which is seemingly the most efPicient means to reach the ban or regulation goal in one fell swoop for the whole state, a new strategy shifted the focus to pursuing piecemeal bans on a municipal level. This scale shift entailed systematic town-­‐by-­‐town action, which can be time consuming. But it also focused campaign actions where the impacts of fracking – positive or negative – were going to be felt, and detangled the campaign from state level politics and inPluence. It also strategically empowered local residents, people who up to this point may have felt helpless to stave off the onslaught of industrial development promised by the gas industry.
The regulatory uncertainty brought to bear by this decentralized strategy was key in pushing back industry arguments at the state level. Thomas West, an attorney for Norse Energy interviewed by Washington Post reporter Steven Mufson noted that local bans made it “very hard for operators to justify spending hundreds of millions of dollars to come in and not have regulatory certainty.”42 Surely a decentralized regulatory system is a hindrance to oil and gas development. In 2010, Helen Slottje, the architect of this strategy who won the Goldman Environmental Prize for this work, Ploated this strategy to several other attorneys and law professors, and none thought it could be done. On 42 S. Mufson – Here’s the grassroots political story behind the New York fracking ban – Washington Post – December 2014
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August 6th 2010, Helen Slottje nevertheless advanced the idea to a local group of residents, who immediately started working on a petition to enact a land use ordinance prohibiting high impact industrial uses. In November 2010, she presented this concept at a community meeting and the idea caught on. It is elegant in its simplicity. The New York Oil, Gas, and Solutions Mining Law (the Mining Law) regulates oil and gas operations in NY. The Mining Law contains preemption language that prohibits towns from also regulating the oil and gas industry. In New York however, there is a long tradition of local authority over zoning and land use, supported by the Home Rule Law and the Statute of Local Governments. In combination, these statutes allow local governments to issue regulations related to zoning, planning, land development and natural resource conservation.43 Activists therefore needed to determine whether towns regulating land use through a ban could also be viewed as regulating the industry. Helen Slottje’s position, which has since been validated by the NY judicial system, was that towns did not regulate the “what,” but simply the “where.” She and her husband David launched a crusade, and offered to draft local laws for free, and to defend them for free. Earthjustice soon joined in, as industry and landowners sued Dryden and MiddlePield, two of the early adopters of local bans.44 Deborah Goldberg, a litigator for Earthjustice says of the preemption language in the mining statute; “that law is utterly silent as to land us or zoning or 43 J. Stinton – The Home Rule Authority of New York Municipalities in the Land Use Context – Pace Law School – 1997
44 Anschutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 452, 53
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planning of any kind.”45 Activists are also lucky that NY case law on mining somewhat supported their argument. In a memorandum dated January 6, 2011, John Lyons, an attorney with Grant & Lyons LLP explains that NY case law draws a line. He writes that if a town prohibits the use, it is within its authority to regulate. However, once a town has allowed a use, it has “little to say about how that use is conducted. Applied to gas drilling, this is precisely the reason why outright prohibition holds a better prospect for success.” Other states have tried importing this strategy since, not always successfully. But in NY, experts eventually lined up to provide recommendations to towns on how to proceed, and how to avoid litigation: use road and trafPic regulations, have a comprehensive plan at the town level so that you can show the law does not discriminate against oil and gas, etc.
In addition to the supply of legal toolkits, environmental groups worked with communities FIGURE 10: TOOLKITS FOR TOWNS -­‐ SOURCE: FWW to organize petition drives, and phone calls. One challenge in implementing this strategy is potential conPlicts of interest within town councils. Council members that are also large landowners may not be able to remain impartial. In a Q and A with New York Times reporter Danny Hakim on June 13, 2012, resident Autumn Stoscheck states: “I see that my town, Van Etten, in Chemung County, shows up as a town that ‘wants’ fracking, and yet my 45 Press conference on June 3, 2014
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neighbors and I have been conducting an informal telephone survey that shows a different story. At this time our total count is 106 Against, 62 For, and 68 Don’t Know. I believe the signing of a resolution stating our town was against a moratorium was orchestrated by the Joint Landowners Coalition of New York in a back-­‐room deal with town board members who own land and have leases.”46 While anecdotal, this resident’s concern illustrates the types of power dynamics that are also present at the municipal level. Ultimately, the democratic process allowing council members to be removed should act as a safeguard for both sides of the debate. Another challenge for this strategy is similar to what is seen at the state level: industry’s ability to outspend the anti-­‐fracking movement, and the resistance brought about by the signiPicant investment that has in some cases been made in lease fees and signing bonuses. For instance, at the time of the Dryden lawsuit, plaintiff Anschutz Exploration Corp. had gas leases over 22,000 acres of land in Dryden, and had spent 5.1 million dollars in activities in the town according to an afPidavit produced during the lawsuit and dated 2011.47
Nevertheless the movement grew, fueled by an endless Plurry of activism. According to Fractracker Alliance, in December 2014, there were 85 municipal bans, 95 municipal moratoria, and 87 municipal movements for prohibitions in New York. Notably, anti-­‐ban movements were also 46 Joint landowners coalition of New York’s goal is to “foster, promote, advance, and protect the common interest of the people as it pertains to natural gas
development through education and best environmental practices” – Source: JLCNY Webpage retrieved on April 27, 2015
47 Anschutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 452, 53
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pushed through the Southern Tier. The maps below illustrate how divided some communities are on the issue. FIGURES 11 AND 12: MAPS OF LOCAL BANS, MORATORIA, MOVEMENTS FOR A BAN, AND PREEMPTIVE RESOLUTION IN FAVOR O F F RACKING -­‐ S OURCE : F RACTRACKER A LLIANCE
Other factors
Several other factors that inPluenced the campaign need to be briePly mentioned. First, New York City (NYC) jumped into action early on, and Mayor Bloomberg hired the Pirms Hazen & Sawyer and Legette, Brashears & Graham to determine the potential impact of fracking in the NYC watershed on the water supply in 2009. The Hazen and Sawyer Report led the DEC to exclude the NYC and Syracuse watersheds from areas that could potentially be drilled. This decision later made it very difPicult for the DEC to argue that fracking was safe; if it is not safe for NYC residents, it surely can’t be safe for residents of the Southern Tier. Roger Downs from the Sierra Club remembers this exclusion as a great way to increase the proPile of the issue, and to get celebrities on board. Second, in 2014, Governor Cuomo was facing re-­‐election. It is difPicult to gauge how much Cuomo’s political ambitions played a role in this decision, but Zephyr Teachout, an opponent who ultimately Vero Bourg-Meyer | 29
won a third of the votes, came out during the election campaign as opposing fracking.48 Third, doubts mounted as to the size of the gas reserves under NY. Simultaneously, gas prices dropped greatly.
FIGURE 13: ON APRIL 24, 2015: THE HENRY HUB NATURAL GAS SPOT PRICE IS 2.59 $/MBTU -­‐ SOURCE: USEIA
The economic return sold by the oil and gas industry to the administration was also called into question, even from within the industry, with some analysts describing shale plays as “giant Ponzi schemes,” with “economics that do not work.”49 Increasing knowledge of the quick, exponential decrease in production coming out of Pennsylvania wells chilled the enthusiasm of observers. The complexity of the issue led Cuomo in December 2014 to turn a favorite slogan of Republican lawmakers on its head; I’m not a scientist. “This is not really a layman’s question. (…) Let’s bring the emotion down and ask the quali1ied experts what their opinion is.” 48 T. Kaplan – Citing Health Risks, Cuomo Bans Fracking in New York State – New York Times – December 2014
49 I. Urbina – Insiders Sound an Alarm Amid a Natural Gas Rush – New York Times – June 2011
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Going the distance
When asked what kept volunteers and organizers going for so long, Roger Downs refers to the inherent drama of the campaign. “There were so many twists and turns! But it was important that every six months, we had a major event to reaf1irm how big we were. People stick with success… But it’s exhausting!” In his opinion, what made the movement successful, beyond its relentlessness, is communication, consultation, and trust between the various anti-­‐fracking factions. “I don’t think I’ve experienced this elsewhere, where you would have NRDC on the phone with the most extreme anti-­‐
fracking groups, and there would be trust there. When NRDC would talk frequently with the DEC or the governor’s of1ice, they weren’t selling us out. (…) Maybe the largest groups weren’t for a very long time screaming ‘ban fracking’ but they would let groups know ‘this is going to happen next week, this would be a strategic time to have a rally or a sit-­‐in’.”
Outcome? A durable win?
Dr. Zucker, when he presented his conclusions on December 17, 2014 restated that bona 1ide scientiPic literature was only now emerging, and compared fracking to second hand smoking. The DOH Pinal report echoed the gaps in the scientiPic knowledge: “while a guarantee of absolute safety is not possible, an assessment of the risk to public health must be supported by adequate scienti1ic information to determine with con1idence that the overall risk is suf1iciently low to justify proceeding with HVHF in New York. The current scienti1ic information is insuf1icient. Furthermore, it is clear from Vero Bourg-Meyer | 31
the existing literature and experience that HVHF activity has resulted in environmental impacts that are potentially adverse to public health. Until the science provides suf1icient information to determine the level of risk to public health from HVHF and whether the risks can be adequately managed, HVHF should not proceed in New York State.”50 Commissioner Martens also highlighted the limitations to drilling from several exclusions, including from local bans, and the Syracuse and NYC watersheds. According to Commissioner Martens, the land restrictions put 63 percent of the Marcellus Shale off limits to drilling. The DEC maps below illustrate the exclusion of areas for protection of groundwater, surface water, cultural and historical places, parks, and local bans, not including setbacks from wells, schools, and other buildings. FIGURE 14: MAPS SHOWING DRILLING EXCLUSION ZONES -­‐ SOURCE: DEC
50 H. Zucker, New York State Department of Health - A Public Health Review of High Volume Hydraulic Fracturing For Shale Gas Development in the State of
New York – December 2014
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At the time of writing this paper, the DEC still had not completed the SEQR process or issued the Pinal SGEIS, but it is expected that it will do so shortly. Once ofPicial Pindings have been Piled, the Pinal rule should be issued. On whether the win is durable, activists seem conPident. “Legal challenges are extremely unlikely to succeed,” says NRDC’s Kate Sinding. “However, nothing is permanent.” She explains that if the next administration wanted to undo the ban, they would need to initiate a supplemental environmental review process, and create a record demonstrating why things have changed sufPiciently for them to come to a different conclusion. “That would trigger all new comments, and a huge amount of activism.” However, she also mentions that all of the Republican candidates to the governor’s ofPice had indicated that they would go ahead with fracking if elected. What next for campaigners? Doing the same in other states they tell me. Roger Downs concludes that he wants to bring the movement forward to construct positive things: “we want to take the energy of the movement, [and] keep that momentum going towards clean energy. Beyond clean energy, it’s the democratization of energy.” In order to do that, he says, the environmental movement has to move beyond chanting three-­‐word mantras. Nevertheless he also says, “it’s that political pressure that created the space for science to be the 1inal arbiter.” Vero Bourg-Meyer | 33
Special thanks to Kate Sinding, Alex Beauchamp, and Roger Downs whose contribution greatly aided my research, and to Hank Cauley whose guidance and insight throughout the semester helped me lay down the groundwork for my analysis.
The image on the cover page is modiPied from http://www.eris.ca/news/alberta-­‐energy-­‐regulator-­‐
immune-­‐from-­‐fracking-­‐contamination-­‐lawsuit-­‐judge-­‐rules/.
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APPENDICES
U.S. SHALE GAS PLAYS : NATURAL GAS PRODUCTION AND PROVED RESERVES , 2012-­‐13 IN TRILLION CUBIC FEET -­‐ SOURCE: USEIA
U.S. NATURAL GAS CONSUMPTION IN MILLION CUBIC FEET -­‐ SOURCE: USEIA
U.S. TOTAL NATURAL GAS RESERVES IN TRILLION CUBIC FEET -­‐ SOURCE: USEIA