Anti-fracking group sues NY Department of Health

Sep 19, 2013

It’s been nearly a year since the administration of Gov. Andrew Cuomo announced that the state health commissioner would conduct a review to determine whether hydrofracking could be done safely in New York. Since then, little information has been released on the ongoing study. Now, an anti-fracking group is suing the state to find out what exactly is being reviewed.

The 23-year-old Seneca Lake Pure Waters Association (SLPWA) filed papers in the New York State Supreme Court to demand that the public be allowed to know what exactly Cuomo’s health commissioner is reviewing.

On Sept. 20, 2012, Cuomo’s environmental commissioner said he had directed the governor’s health commissioner, Dr. Nirav Shah, to look at the Department of Environmental Conservation's data, and to contract with outside health experts before making a decision on whether to allow hydrofracking in New York.

Since then, Shah said he’s visited states that allow hydrofracking, including neighboring Pennsylvania, and met with Environmental Protection Agency officials to discuss ongoing studies. No further details have been released.

SLPWA President Mary Anne Kowalski said her group already used the Freedom of Information Law to request that the documents be released.

“Frankly we expected to see laboratory data and charts, maybe some epidemiological studies,” Kowalski said.  

Kowalski said instead, her group got nothing. The SLPWA appealed to the Cuomo administration, and their appeal was denied with the department of health stating information in the articles was exempt under the Freedom of Information Act. Now, they’re petitioning the courts and asking for a hearing in October.

Attorney Rachel Treichler is representing the group on a pro-bono basis in the case.

Treichler says while opinions in the documents may be exempt and are allowed to be redacted, the group is entitled to see the scientific data, statistics, and factual information they may contain.

"If a document has an opinion in it, but also has facts, they have to redact the opinions and give you the factual information that we're entitled to."

"They're also supposed to produce a list of the documents that they are claiming are exempt," Treichler said. "They can't just give a broad-based claim that everything's exempt. They have to identify what documents they are claiming are exempt."

While the SLPWA and others against fracking are not happy with the lack of information, they are relieved that at least the Cuomo administration seems to be taking health concerns seriously, as evidenced by the long delay on a final decision.

“It’s good that the department does appear to be taking their time and studying the issue,” Kowalski said.

She said the gas has been underground for hundreds of thousands of years and if the determination is made that it can be drilled “safely and properly," it will still be there, and might even be worth more money by then. Natural gas prices have recently been at record lows, partly due to active hydrofracking elsewhere in the U.S.

The lobby group for the natural gas industry, the Independent Oil and Gas Association (IOGA), is far less pleased with all the delays.

The group has begun a publicity campaign that it says will focus on numbers, to document to New Yorkers the economic opportunities lost because of the failure to begin hydrofracking.

The first day of the campaign focuses on the now five-year de facto moratorium on hydrofracking in New York. IOGA’s John Holko said it’s been 1,882 days since former Gov. David Paterson agreed to a temporary halt to starting hydrofracking. Holko also said that’s been in place in one form or another under Cuomo ever since.

“We’re going to try to get people to understand the impact this has on New York, the economy and New York’s opportunities,” Holko said.

Holko says IOGA would like to see the details of the ongoing health review as well, but he said it doesn't expect any new findings. He said most of the research has already been conducted and his group can only reach one conclusion.

“This has become purely a political decision, and has no relevance to science or fact,” Holko said.

The state health department has said that there’s no timetable for when Shah’s health review might be completed.

There was no immediate comment on the Freedom of Information Law lawsuit.