As previously noted, the DEC has known for some time that it was going to be sued over the proposed fracking rules and regulations. The DEC hired two attorneys, Marc Gerstman and Ed McTiernan, to be ready to try defend the agency’s inherently dysfunctional approach to regulating fracking. As we have noted before, the fundamental flaw in New York’s regulatory approach is that it attempts to combine both the environmental regulatory oversight of shale gas industrialization (as evidenced in the environmental rules – the SGEIS regulations) with the regulation of drilling itself, as evidenced in the proposed drilling regulations, but makes the drilling oversight group in charge of enforcing the environmental rules. Trying to do this in the same agency is a bureaucratic aberration, since it virtually guarantees the the environmental regulatory role will be subordinate to drilling regulations, or as the DEC states, the promotion of drilling. The DEC cannot serve two masters, the gas industry and the public. It cannot possibly reconcile these two tasks, so it doesn’t even try. The task of protecting the public or the environmental is simply dispensed with in a fog of bureaucratic prevarications.
The mission to promote fracking will predominate and the environment will suffer, because the division responsible for issuing drilling permits – the Division of Mineral Resources (DMR) has been explicitly tasked with environmental oversight of the activity. The proposed drilling regulations have been issued before the environmental regulations, the dSGEIS, has been completed. So we are commenting on the drilling regulations without knowing what the environmental safeguards are. This is like putting before teeing off. You can do it, but it makes no sense and it’s against the rules of the game.
The proposed HVHF drilling regulations are unenforceable without the environmental regulations as an overlay to well permitting. And the environmental regulations don’t exist, since November 29th of last year was their 12 month expiration date.
2. Expiration of notice of proposed rule making; notice of
(a) Except with respect to any notice of proposed
rule making concerning a rule deﬁned in subparagraph (ii) of
paragraph (a) of subdivision two of section one hundred two of
this chapter, a notice of proposed rule making shall expire and
be ineﬀective for the purposes of this section, unless the
proposed rule is adopted by the agency and ﬁled with the
secretary of state in the manner prescribed by law, within three
hundred sixty-ﬁve days after the later of:
• (i) the publication in the state register of a notice of proposed
rule making for the rule; or
• (ii) the date of the last public hearing announced in a notice of
proposed rule making for the rule. SAPA § 202
The DEC can apply for a 90 day extension.
• 3. Continuation of notice of proposed rule making.
If, within ninety days of the date on which a rule will expire, an agency
submits a notice of revised rule making for the rule, the rule
making will be continued for an additional ninety days beyond
the date on which it would have expired.
The DEC has applied for a notice of continuation –
The New York State Department of Environmental Conservation (DEC)
has ﬁled a Notice of Continuation with the Department of State to
extend the rulemaking process by 90 days in order to give New York
State Commissioner of Health, Dr. Nirav Shah, time to complete his
review of the draft Supplemental Generic Environmental Impact
Statement. This extension is necessary, in part, because Commissioner
Martens requested and Dr. Shah agreed to provide an additional
review, in consultation with outside experts, of whether DEC has
adequately addressed potential impacts to public health. This ﬁling
with the Department of State merely extends the rulemaking period to
enable Dr. Shah to complete his review and DEC time to take into
account the results of Dr. Shah’s review and continue to consider the
potential impacts of high-volume hydraulic fracturing.
There has been no transparency in this review, only leaks indicating that the DEC thought they could address health impacts with 8 pages of fracking spin. This fits their pattern of duplicity – the DEC have refused to show the basis of its work, either for the proposed drilling regulations, the proposed environmental regulations, or any information on the quicky “health review” – since that would amount to stipulating to how they crafted the regulations, which was done in consort with the gas lobby, not scientists. The DEC is required by law to show the scientific basis of the proposed rules :
An agency, upon request, shall, within thirty days,
make available for inspection and copying any
scientiﬁc or statistical study, report or analysis,
including any such study, report or analysis
prepared by a person or entity pursuant to a
contract with the agency or funded in whole or in
part through a grant from the agency that is used
as the basis of a proposed rule and any supporting
data; provided, however, that the agency shall
provide for inspection only of any such study,
report or analysis due to copyright restrictions.
SAPA § 104
But the dSGEIS and proposed drilling regulations cite no studies, no statistics, no scientific basis. Indeed, the comments on the proposed regulations by one person, Sandra Steingraber, cite more sound science than the DEC has in four years. The proposed regulation’s lack of substance make them a compelling advertisement for Home Rule.
Absent sound procedural due-process or a rational basis, neither the proposed drilling regulations nor the environmental regulations are likely to be enforceable. Permit applications for HVHF wells will be challenged and the evidence will show that the proposed rules and regulations are the result of little more than the exigencies of bumbling bureaucratic expediencies. Which is recognized as such by the cognizant Assembly oversight committees, and any legislator in Albany that has not been bought off by the frackers.