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December 29, 2012

Frack feuds hit stalemate

By Joe Mahoney
The Daily Star

---- — Hog farmer William Cooke of Sloansville didn’t want federal regulators to leave Oneonta before he had a chance to tell them exactly what he thought of the proposed Constitution Pipeline — a system that would link Pennsylvania shale gas operations to existing pipelines in his home county.

“This is New York — and we will stand and we will fight,” said Cooke, one of hundreds of people who turned out at three emotionally charged public forums in the region to urge the Federal Energy Regulatory Commission to reject the project.

The pipeline plan, backed by several business groups and Delaware and Otsego County lawmakers, emerged in 2012 as the newest battleground pitting opponents of shale gas development against those who argue hydrofracking can be done safely and will invigorate the upstate economy.

At the end of the year, predicting whether hydraulic fracturing will be permitted by state officials remains as difficult as it was one year ago.

The state Department of Environmental Conservation is again taking public comments on revised regulations that were issued Dec. 12. The comment period will end Jan. 11. What will happen after that is a matter of speculation.

While the de facto moratorium on hydrofracking in New York continues in the absence of decisive action by the state, the year was not without major developments.

Locally, supporters of home rule — allowing towns to determine whether hydrofracking should be banned or permitted within their boundaries — scored a major victory Feb. 24. On that day, acting State Supreme Court Justice Donald Cerio handed down an 11-page decision that kept intact the town of Middlefield’s zoning law aimed at keeping out gas drilling and other heavy industry.

The judge ruled there was “no support” for claims that the state Legislature, by enacting the Environmental Conservation Law in 1981, intended to “abrogate the constitutional and statutory authority vested in local municipalities to enact legislation affecting land use.”

The lawsuit challenging the Middlefield law was brought by local dairy farmer Jennifer Huntington, owner of Cooperstown Holstein Corp. The company had leased nearly 400 acres in the town to a gas drilling company. A neighboring company, Brewery Ommegang, employing just shy of 100 workers, came out in support of the town’s ban, announcing its need for pure water to produce its premium craft beer would prompt it to move elsewhere should hydrofracking commence on neighboring property owned by Huntington.

Huntington, with help from the gas industry, has appealed Cerio’s ruling. A similar ruling in support of home rule had been issued in support of the town of Dryden’s prohibition against hydrofacking. Rulings in both cases are expected in 2013 from appellate courts. Ultimately, New York’s highest court, the Court of Appeals, is expected to determine whether local governments have the authority to zone out shale gas drilling or whether that power, as the industry argues, lies solely with the Department of Environmental Conservation.

The proposal to construct the Constitution Pipeline was announced by Cabot Oil and Gas and Williams Partners on Feb. 21, triggering strong disapproval from some environmental advocates and vigorous support from executives and union leaders at the Amphenol plant in Sidney.

The large-diameter pipeline, stretching 121 miles from Northeast Pennsylvania to the Schoharie town of Wright, would take a “preferred route” of traversing mostly rural fields, forests and farmland to reach its destination. Company officials insisted that the project has nothing to do with any attempt to initiate hydrofracking operations in upstate New York, and the transmission system was fully subscribed by producers of shale gas in Pennsylvania.

“This pipeline is truly the next big step of our capacity expansion program ... that has historically been constrained from both a lack of reliable supply and pipeline infrastructure,” Cabot’s president and chief executive officer, Dan Dinges, said in rolling out the project. The partnership backing the plan intends to submit a formal application to FERC in 2013. The agency will determine whether the pipeline can be built and has full control of what route it would take.

To build the pipeline, project managers would have to secure easements from landowners. Parcels along the targeted pathway, even if landowners refuse to grant such easements, could still be utilized by the developer as a FERC license would give it eminent domain authority to access the land in question.

Lending support to opponents of the pipeline were Yoko Ono, wife of slain Beatle John Lennon, and the couple’s son, musician Sean Lennon. Ono and Sean Lennon often stay at their home in the Delaware County town of Franklin, within a few miles of the preferred route for the project.

In August, after Sean Lennon declared his opposition to upstate fracking in an essay published by The New York Times, the chairman of the Delaware County Board of Supervisors, Harpersfield Town Supervisor James Eisel, told The Daily Star that he didn’t think Ono, Lennon or their group, Artists Against Fracking, would change any minds.

“They are icons of the past who think they are going to have sway, but they won’t with the conservative rural residents of Delaware County,” Eisel said.

On Oct. 10, Eisel would be part of an overwhelming majority of the Delaware County board to come out in favor of a resolution contending that running the pipeline through eight towns in the county would have a positive economic impact.

One of the supporters, Hancock Town Supervisor Samuel Rowe Jr., stated that Pennsylvania was brimming with business activity as a result of hydrofracking.

“When you see what we’re missing out on, it’s disgusting,” Rowe said. “It’s just phenomenal, the economic boom that is going on there.”

A slim majority of Otsego County lawmakers voted Oct. 3 to support the pipeline — if the project ended up hugging one of the proposed alternative routes near the Interstate-88 corridor. That would put about 30 miles of it inside Otsego County, potentially earning the county and local governments as much as $3 million a year in new revenue.

Two Oneonta Democrats on the Board of Representatives, Linda Rowinski and Katherine Stuligross, sided with six Republicans in supporting the so-called Route M pipeline option. The other five Democrats on the board voiced concerns that the project could lead to local hydrofracking, with some questioning the safety record of the pipeline industry.

At a public hearing before the vote, a pipeline opponent living in Rowinski’s district, acupuncturist Colleen Blalock, chided her representative, saying, “Linda, I’m sure you have good intentions, but the road to hell was paved with good intentions.”

After the vote, Adrian Kuzminski, the founder of the anti-fracking group Sustainable Otsego, suggested those who backed the pipeline will face consequences in the 2013 elections. “We could not support people who voted this way,” he stated.

Among those who urged the county board to stand behind Route M pipeline construction were Oneonta Mayor Dick Miller; Robert Harlem, president of Oneonta Block Co. and a founding member of the pro-growth group Citizens Voices; Richard Downey of the Unatego Area Landowners Association; Edward Zaengle, a Maryland lawyer who works with landowner groups, and Barbara Ann Heegan, executive director of the Otsego County Chamber. 

Three weeks later, the FERC-sponsored scoping forum held in Oneonta became a lion’s den for Mayor Miller as he found out first hand just how passionately strident some pipeline opponents can be. When he took the microphone, Miller had to speak above loud jeers that interrupted his stated support for the project.

“Pipelines are safe — they pose no threats to our lakes,” Miller said.

But Otsego Town Board member Julie Huntsman, a local veterinarian, suggested the $750 million project “may be completely unnecessary to start with.” She called on FERC to do “due diligence” in determining whether existing pipeline infrastructure could take the same gas to the intended markets near Boston and New York City.

As the pipeline debate frothed, state DEC officials were completing their review of about 80,000 public comments reacting to proposed state rules governing hydraulic fracturing.

The DEC’s moratorium on horizontal drilling and high-volume hydraulic fracturing stretches back to July 2008, when the agency began its environmental review of the controversial technology. To free trapped shale gas, drillers inject wells with chemically treated water to crack open underground formations. Critics claim the process can lead to groundwater contamination, while the industry insists the procedure can be accomplished safely.

State Environmental Commissioner Joe Martens rejected overtures from fracking foes in September to allow outside experts to conduct a health impact evaluation of the rules before final action is taken. As an alternative, Martens recruited Nirav Shah, the state health commissioner, to oversee a study of how hydrofracking might affect the health of New Yorkers. Environmental groups criticized the arrangement, noting both Shah and Martens hold political appointive jobs controlled by Gov. Andrew Cuomo.

Kuzminski said the anti-fracking movement is generally pleased that state officials have yet to reach a decision on whether to lift the statewide moratorium. During the past year, he said, scores of towns in New York have enacted permanent or temporary bans on hydrofracking, presenting tall challenges to the industry in the event permits for high-volume fracking are issued.

“Every day that goes by that the moratorium stays in effect is a good day for us,” the Fly Creek resident said. The amount of resistance that has been built up over five years is phenomenal. We have succeeded in calling fracking into question as a policy.”

On the whole, he said, 2012 produced no clear winners or losers in the struggle over whether New York should sanction or deny high-volume horizontal drilling.

“The situation hasn’t moved a lot in a year,” Kuzminski said. “It has mostly been a war of attrition. Both sides have been reiterating their positions and making small gains or small losses.”

Dick Downey of the pro-drilling Unatego Area Landowners said the fact the energy exploration company Gastem has not renewed its leases in the region and Chevron is following suit are signs that the industry sees obstacles in front of drilling in upstate New York.

“Locally, I’m fairly pessimistic,” said Downey, a retired teacher. “Nationally, we’re doing very well. We’re starting to export gas and we’re becoming self-sufficient. Natural gas is turning around the Midwest. The Rust Belt is coming back again, especially in Ohio and Pennsylvania. It’s a promising technology, and we’re moving ahead. But locally we’re stymied at this particular moment.”

John Holko, owner of Lenape Resources, a natural gas company that has leases in Otego and other towns in upstate New York, said the only bright spot for the industry in 2012 came when state officials stopped short of “throwing the regulations out the door” and instead moved to redraft them, with a 90-day extension.

“Hopefully, that is something they are going to live up to so we can get another step closer to the opportunity that we have,” he said.

Holko said the industry would like to see Cuomo and other state officials tell towns enacting drilling bans that they are out of line. He echoed the industry position that only the state DEC is empowered to regulate drilling and home rule bans are in conflict with the state law.

Opponents of gas drilling said they are also less than thrilled with the Cuomo administration’s handling of the issue.

“2012 was frustrating, that’s for sure,” said Katherine Nadeau, spokeswoman for Environmental Advocates, a group opposed to fracking. “The governor’s administration really had the opportunity to lead the nation by conducting a full health assessment of fracking. Instead, they decided to do some kind of study that they have never shared with the public. But we’re still hopeful the governor will stick to his promise and let the science drive the policy.”