Finally, we agree on something. The Independent Oil and Gas Association of New York, (IOGA NY) says that the DEC’s proposed fracking regulations are illegal – because they do not meet the minimum standards for rules and regulations, as set forth in SAPA. Team Slottje already came to a similar conclusion. The mountebanks at the DEC have known they were going to get sued over this fracking fiasco for some time. Get in line.
IOGA NY is made up primarily of fracking wannabes, aka “frackettes,” like publicity-stunting Lenape Resources. Most of its members and supporters have never actually drilled a high volume horizontal shale well in New York, in fact come to think of it, nobody has drilled a high volume horizontal shale well in New York, but they think they might be able to pull that off – without going bankrupt or contaminating the air and water. Good luck. This is IOGA NY’s take on the proposed fracking regulations:
1. They are not based on science. (True) But IOGA does not actually offer any science to back its assertion, nor did IOGA bother to attend the Assembly committee hearings on the proposed regulations, nor did any of the scientists that did attend speak out in favor of reducing the proposed regulations as IOGA suggests.
2. They are illegal, because they do not meet minimum regulatory requirements. (True) But according to the frackettes, the requirement that they do not meet, is that the regulations fail to “promote” the interest of frackettes – small independent oil and gas operators, most of whom have not actually drilled any horizontal shale wells, but sure would like to give it a try – somewhere in New York, or, according to IOGA, pretty much anywhere in New York.
3. They are a regulatory “taking” of mineral rights. (False). IOGA’s members are operators that lease mineral rights – which is little more than a speculation. Takings do not apply to leases. IOGA evidently does not have an attorney on staff. Fracking advocates like IOGA have argued that mineral rights are worthless – both in court and in writing to the legislature. This may complicate a takings claim on a lease.
4. New York has the best regulatory regime in the country. (True) For the frackers. New York is a fracking tax haven – now the only shale state that has no state tax on oil and gas production. Zero – compared to 7.4% in Texas. Or 15% in Alaska. New York is one of the few states that has no autonomous environmental oversight over fracking – and it shows – the DEC’s fracking regulations have been written by the gas lobby for years.
Jon Campbell gets the story:
Posted by: Jon Campbell – Jan 24, 2013
“These regulations are replete with requirements that have no foundation in science or in the long history of modern drilling in New York State without adverse environmental consequences,” wrote Brad Gill, IOGA’s executive director.
This of course neatly ignores the fact the proposed regulations are for HVHF wells – that have never actually been drilled in New York State by anybody, much less the frackettes, and that New York has a long history of problem wells and inept, if not corrupt regulators. Not a good starting point.
In his letter, Gill goes as far to suggest the DEC is breaking state law. The State Administrative Procedures Act, (SAPA) which governs how agencies adopt new regulations, requires the agency to take steps to reduce adverse impacts on small businesses; IOGA contends the proposed fracking rules cater to large natural-gas companies rather and that DEC isn’t giving consideration to small, independent operators.
The regulations most assuredly do not follow SAPA, but is IOGA prepared to do anything about it, like Team Slottje ? SAPA requires regulations to reduce regulatory impacts on small businesses – not promote small businesses. Not the DEC’s job. Look at the fracking fiascos of small businesses like Gastem – a penny stock company that became a farthing stock company prospecting for the Utica Shale in Otsego County. Or Lenape Resources, an IOGA stalwart, cutting off its own dinky gas wells to spite a town, then suing the DEC as a publicity stunt. Why would the State of New York want to promote fly-by-night operators in the risky business of shale gas industrialization ? When the DEC says in the proposed regulations it intends to “promote” public international companies, like Norse Energy.
IOGA claims that the proposed regulations are a “regulatory taking” of mineral rights:
In fact, these prohibitions amount to a taking of mineral rights without just compensation in violation of constitutional rights.
Doesn’t IOGA have access to an attorney ? Or a law library ? There is no such animal as a regulatory taking of mineral rights in US judicial history, much less in New York case law.
One of the “most glaring issues,” Gill wrote, is a proposal to ban gas wells from being drilled within 300 feet of federally regulated wetlands. He contends the DEC doesn’t have the authority to propose a ban relative to federal wetlands.
Wetlands are protected areas, not good places to drill HVHF wells with thousands of trucks and millions of gallons of toxic radioactive flowback. Federally designated wetlands are protected under the Clean Water Act. The State of New York designates more wetland areas in the state than federal regulations do, and all federally designated wetlands in the state would fall under the state’s designation. By definition, all wetlands in New York are subject to state regulations – unless they are on federal lands.
Packaged with a number of other setbacks—DEC has proposed restricting where gas wells are drilled in relation to homes, aquifers and other water sources—Gill says it would make it difficult to drill in New York at all.
Would that it were so. But there are no setbacks for a HVHF well site from homes, factories, warehouses, or filling stations, because the proposed setback is measured from the drilling rig, not the pits, compressors, processors, or pipelines. Most land uses – schools, hospitals, fire stations, police stations, hotels, offices, parks – are not protected at all. Most aquifers in New York are in fact not protected from HVHF industrialization. With the notably exception of the New York City reservoirs, the proposed regulations allow HVHF wells to be drilled under any lake, any river, and trout stream in New York.