Enviro Wants NY to Cough Up Fracking Talks

ALBANY, N.Y. (CN) - New York officials are concealing industry influence on pending regulations for the controversial drilling process known as fracking, environmentalists claim in court

"The public has a 'right to know' what was communicated to DEC and to the governor by the oil and gas industry, and what was communicated by DEC or the governor to the oil and gas industry, especially as it pertains to the risks of high-volume horizontal hydrofracking to public health, drinking water, homes, residents and property values," Environmental Working Group says in Albany County Supreme Court, abbreviating the Department of Environmental Conservation.

The Washington-based nonprofit claims that the state released a "shockingly small volume of records" in response to its request under New York's Freedom of Information Law.

Hydraulic fracturing, called hydrofracking or simply fracking, involves pumping a pressurized mix of sand, water and chemicals deep underground to break up shale and release the natural gas held there. Parts of New York sit atop the Marcellus Shale, a prehistoric formation that stretches from Ohio to Maryland and is thought to hold trillions of cubic feet of natural gas.

The chemicals used in fracking have raised concerns about possible pollution of drinking water, and New York City is allegedly at risk since its watershed in the Catskill Mountains is located on the eastern end of the state's Marcellus field.

"The drilling and fracking process poses inherent risks to drinking water, homes and health in the form of gas leaks, migration of toxic fluids underground, chemical spills, explosions and even earthquakes caused by injecting wastewater underground for disposal," according to the complaint.

The Environmental Working Group, which describes itself as a nonpartisan band of earth-minded scientists, engineers and lawyers, says the risks of fracking will not be fully evaluated before the process becomes widespread.

New York has not yet released final regulations to govern fracking, which already is used in Pennsylvania, another Marcellus Shale state.

Fracking "has been one of the most prominent political issues" in New York since 2008, the group says. It estimates 50,000 new gas wells in New York if fracking wins approval.

The group claims that the oil and gas industry "[f]or many years ... has been providing detailed information to DEC and the governor in order to influence DEC's proposed regulations regarding hydrofracking."

This very "influence" might explain why a proposed draft of the regulations released for public review and comment in September 2011 "were heavily tilted in favor of drillers and contained numerous scientific gaps and inaccuracies," according to the complaint.

In its formal response to the draft, the group says it noted that the plan would allow "drilling too close to water supplies, contained no adequate measures to safely dispose of toxic drilling wastewater, and would allow drilling to proceed with too few inspectors."

Since the U.S. Geological Survey raised similar concerns during the comment period, the group says the sought-after records could reveal "whether the drilling industry was exerting undue influence on DEC's environmental review and rulemaking."

In 2011, the department "gave natural gas drilling industry representatives access to draft regulations for hydrofracking as early as six weeks before they were made public," according to the complaint.

The department even allegedly allowed a representative from Chesapeake Energy Corp., the country's No. 2 natural gas producer, to try to weaken rules to restrict discharges of wastewater that are made radioactive by the shale deposits.

"It is EWG's position that, while DEC may obtain cost-of-compliance information from the regulated community, DEC may not treat the regulated entities preferentially by providing them with exclusive access to the specific language of the proposed regulations and permits," the complaint states.

The FOIL requests to the department and Gov. Andrew Cuomo's office sought all correspondence since Jan. 1, 2011, that Cuomo, DEC Commissioner Joseph Martens, and various agency and executive chamber officials may have had with leaders of two dozen oil and natural gas companies, including Chesapeake, Cabot Oil & Gas, Anschutz Exploration and Norse Energy.

Communications with the Independent Oil & Gas Association of New York and the West Firm, an Albany law firm that claims to be a leading authority on the state's oil- and gas-well siting program, were also requested.

The department, however, turned over 282 pages of documents and Cuomo released 86 pages of records plus a DVD, according to the complaint.

Calling this a deficient response to its request for 14 months of documents, the group says it filed 10 additional FOIL requests for "information of any kind."

The group claims to have cited specific meetings or reports by date and name that were referenced in the first batch of responses, but the department subsequently released one additional document.

"There is a presumption that all agency records shall be made available to the public unless they fall squarely within one of the enumerated exceptions to FOIL," the complaint says.

The court could even review the records in camera to determine whether any exemptions apply, the group says.

Claudia Braymer of Caffry & Flower in Glens Falls represents the environmentalists.

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