‘Stop, or the nig#$er gets it,’ aka the ‘fiscal cliff’

There’s a classic scene from the film “Blazing Saddles” in which the new sheriff of a Western town, finding the townspeople’s guns trained on him after they’ve found out, to their horror, that he’s black, puts a gun to his own head and says, “Stop, or the nigger gets it!” This being a Mel Brooks film, the townspeople immediately fall for the gag. People draw back in consternation, guns are lowered, and one woman cries out, “won’t anybody help that poor man!”

It’s no surprise to see such a con pulled off in a Mel Brooks film. It’s astounding to see it succeed in real life, with high stakes. But that’s exactly what seems to be happening in this country, with the so-called fiscal cliff.

Last year, in the Budget Control Act of 2011, deficit hawks in Congress demanded drastic, automatic government spending cuts to begin on January 1, 2013 in exchange for an increase in the debt ceiling at that time that kept the government from being shut down. In doing so, it picked up a gun and held it to its own head, along with those of all of the rest of us. Congress is now supposedly going to be forced to come up with a “Grand Bargain” consisting, if the people holding the gun get their way, of huge spending cuts largely aimed at the poor and middle class, or else a bunch of automatic cuts (aimed largely at the poor and middle class) will be enacted. It’s a self-manufactured crisis. It’s a gun Congress has elected to hold to its own head as an excuse to make draconian spending cuts of a dimension that economic experts tell us will send us right back down into recession. And all they have to do is put down the danged gun.

And if the electorate were in full possession of its wits, you’d think they’d be clamoring to their representatives to tell them to do so, given the potentially devastating impact not only of the automatic spending cuts and tax increases, but of any deals that might be struck to evade them, on the vast majority of the population during a precarious recovery.

Instead, the corporate media has done its bit to dull our senses by embracing the picturesque term “fiscal cliff” to describe the situation, as though the problem were an intractable and permanent feature of  the landscape toward which external forces are driving us. Whether through negligence or deliberation, the use of the term itself therefore has a propagandistic impact, while satisfying the media’s need to stimulate fear and excitement, sell papers and draw eyeballs to web pages and TV screens. "Fiscal cliff" in a headline is almost as good as "Lindsay Lohan."

After backing his “hostage” into the sheriff’s office and closing the door, Brooks’ sheriff relaxes, leans against it, folds his arms and says, “Oh baby. You are so talented, and they are so dumb.”

Indeed we are, if we continue to fall for it.

For more details on the fiscal cliff and the myth that austerity is the cure for what ails us, see:

http://www.alternet.org/economy/6-reasons-fiscal-cliff-scam
 http://www.nytimes.com/2012/11/12/opinion/krugman-hawks-and-hypocrites.html

http://www.nytimes.com/2012/09/28/opinion/krugman-europes-austerity-madness.html?partner=rss&emc=rss

Perhaps more comfort needed on the road use law

HORTONVILLE, NY — Comments on the Multi-Municipal Task Force (MMTF) road preservation law at the Town of Delaware’s public meeting last night agreed almost universally that in principle, the law is a great idea and should be passed. But speakers also voiced serious concerns about the way the law handles certain specific issues, and noted that it has not been well explained to the public. The preference therefore was to have a vote on the law be delayed, and it was also suggested that a workshop or workshops be arranged during which the points of contention could be discussed.

 I’ve written strongly in support of this law here and elsewhere, and obviously agree with the first point. But I also understand some of the concerns voiced about the law, which, to the extent that it interacts with complex and lengthy program and technical manuals that appear not to have been posted online, is not all that easily understood. I therefore agree that some delay might be in order, along with some effort at public education on points of concern.

The three main areas of concern raised last night were the difficulty and possible expense of administering the law; the potential difficulties of enforcing the law; and a query as to whether the law may wind up affecting small businesses like home builders instead of just the larger firms like Millenium Pipeline that it is intended to capture.

With regard to the administration issue, at last night’s meeting, town superintendent Ed Sykes said they had filled out some sample paperwork at a workshop that had been held for MMTF members and it didn’t seem that bad to him. I simply don’t have the knowledge base to evaluate what the potential problems might be here, but a further discussion of how much additional work is involved, the degree to which it might prove necessary to increase payroll expenses, and the extent to which the money put up by road use applicants will be adequate to cover any additional personnel might be appropriate if workshops were indeed to be held.

 I believe the concerns about enforcement were greatly overblown, partly because there seemed to be a misunderstanding of what it is that actually needs to be enforced. People were talking as though the issue was identifying individual trucks as either adhering or not adhering to weight and size restrictions, as one has to do when roads are posted with weight limits. But in fact the whole genius of this law, as opposed to posting, is that it makes no effort to restrict individual trucks by size. It measures the overall road damage created by an industrial project, and charges to repair all that damage, regardless of how many trucks caused it or what size they are. As much damage as is done, that’s how much the company will have to pay. The company has to put up a bond ahead of time to cover repairs, and if it turns out after the job that more damage has been done than the size of the bond, it will also have to pay that.

Enforcement to this extent only requires measurements at two points in time: once before the job begins, and once afterwards. It’s not as though you have to have a lot of people out on the roads spotting individual trucks and making sure they are not too big. To be sure, some enforcement would be required in a couple of areas. First, the law calls for companies to stick to only certain routes. There is a possibility they will use routes that have not been approved, and some kind of oversight system would be needed for that. Second, there is presumably the possibility that someone will commence a project without filing an application in the first place. I think these are fairly limited and probably manageable problems. But again, there would be no harm at all in holding some workshops to explain this kind of thing to the public.

With regard to the question whether small construction firms could be caught in the law’s net, I can understand why somebody in the construction business might find the language of the law itself vague, with phrases like “unusually heavy traffic” and “above-normal wear and tear” to describe the activity for which businesses will need to pay for road repairs. However, I believe that the specificity of the law lies not in its internal definitions, but in its interaction with the program and technical manuals, as contained in Section 5 B: " The Town Highway Superintendent shall review such application and worksheet in accordance with the Program Manual and the Technical Manual. Within no more than thirty (30) days after receipt of a complete haul route application and project traffic worksheet, the Town Highway Superintendent shall notify the applicant whether the use of Town Highways will result in Concentrated Traffic."

Obviously, the key thing here is whether the methodology of those manuals succeeds in screening out small businesses. But that’s not possible to tell for sure without access to those manuals, and an explanation of the methodology. Here again, it seems to me that it is quite legitimate for concerned businessmen to want to sit down and be shown exactly how the methodology works, perhaps filling out sample applications with numbers that would be typical for the jobs they do, and seeing what results would emerge using the manuals' procedures.

Like last night’s speakers, I think that the MMTF road use law is important to have in place regardless of whether fracking activity—the prospect of which provided the incentive for developing this law—ever comes to the county. But also like them, I think it is reasonable to ask for a small delay while the law is better explained to those members of the public who are concerned, and amend it as necessary to iron out any snarls that are discovered, and would recommend a workshop or workshops during which this could be done.

Reflections

This photograph, titled "Sunrise at Lily Pond," was taken, and sent to me, by Scott Rando of Shohola, PA.

What they'd be doing if they really thought it was a bridge

I have a concession to make. I think we need natural gas as a bridge fuel. But what I find infuriating is that the people in government and industry who say that we need natural gas as a bridge fuel don’t behave remotely as though they really believe it. They behave as though it’s a resource that we should use as exhaustively as possible for as long as possible.

I think we need natural gas as a bridge fuel in the sense that right today, if we completely stopped using fossil fuels in general and natural gas in particular, we would not be able to supply the planet’s human population with even its most minimal needs. But if you think it’s a bridge, then you should be formulating a plan, with a specific timeline and quantitative goals, according to which fossil fuels, including natural gas, will be phased out, and conservation measures and alternative energy sources phased in.

Instead, we hear people talk about how many hundreds of years of natural gas they think we have. We hear them talk about how, after they’ve finished draining the Marcellus dry, they can access the Utica shale. We hear them planning long-term retooling of various industries to use natural gas.

That’s not bridge thinking. That’s a “we can keep on doing this forever” fantasy.

Here’s what bridge thinking would look like:

1. Project the nation’s energy needs out to some date, no later than, say, 2050, on the basis of current trajectories of demographics and usage patterns.
2. Look at conservation measures that we know to be currently available, and set out a series of deadlines and goals for implementing these as broadly and completely as possible, out until 2050.  If there’s a quantitatively respectable way to estimate additional conservation savings that might be incurred due to the impact of innovations not yet known, add that in too.
3. Recalculate the nation’s energy needs, assuming that the conservation goals are met.
4. Set your ultimate phase-out targets: e.g., by 2050, no more than 5% of our energy needs should be met by natural gas (that doesn’t have to be the number – but if you really think it’s a bridge, that number had better be pretty small). Develop an annual schedule of how much the percentage of usage satisfied by natural gas would have to decline between now and 2050 to meet that goal.
5. Applying the percentages from step 4 to the nation’s total energy needs established in step 3, figure out how many mcf of gas will have to be produced each year to meet your phase-out goals.
6. Calculate how many wells should be operating, year by year, in order to produce the natural gas set in step 5 – which obviously at some point in the not-too-distant future would have to start diminishing.
7. Take a look at the environmental sensitivity, productivity of wells and costs of drilling in various areas, determine where it makes sense to drill between now and 2050, and where it does not, and develop an optimum schedule and map of such drilling activity.

Obviously, a similar series of steps should also be taken not only for other fossil fuels, in terms of phasing them out, but for various alternative energy sources, in terms of phasing them in.

When and if President Obama, other politicians like Governors Corbett and Cuomo, or the various industry cheerleaders present a plan like this, and make an effort to actually implement it, I will also listen respectfully to talk about needing natural gas as a bridge fuel.

But as it is, the people who throw around the phrase “bridge fuel” are mostly just talking out of both sides of their mouths.

Long, wonky post on the legality of road use laws OR Why I disagree with Bethel

An article in the Sullivan County Democrat a couple of weeks ago reported that the Town of Bethel has decided not to go ahead with the road use preservation law proposed by the Multi-Municipal Task Force (MMTF), of which it is a member, on the grounds that the law stands on shaky legal ground.

I am not a lawyer, but the town’s position on the legality of the proposed law puzzles me, in light of the New York State Department of Environmental Conservation’s (DEC) SGEIS on horizontal hydrofracking issued in September of 2011. That document concludes that damage to local roads is a major adverse impact to be expected from the heavy traffic associated with fracking, and proposes as mitigation laws and road use agreements that sound almost exactly like the model law produced by the MMTF (See the DEC SGEIS at http://www.dec.ny.gov/data/dmn/rdsgeisfull0911.pdf, starting on hard-copy page 7-137, digital pdf page 987.)

Nor can one argue that the DEC simply ignored legal issues; indeed, it cites chapter and verse of New York State transportation law in order to provide the basis for its suggestions. For one example, on page 7-137, it says:

“NYS Vehicle and Traffic Law § 1640(a)(5) provides that, 'The legislative body of any city or village, with respect to highways … in such city or village … may by local law, ordinance, order, rule or regulation … exclude trucks, commercial vehicles, tractors, tractor-trailer combinations, [and] tractor-semitrailer combinations from highways specified by such legislative body.” Part 10 of this same section allows legislative bodies of a city or village to 'establish a system of truck routes upon which all trucks, tractors and tractor-trailer combinations, having a gross weight in excess of ten thousand pounds are permitted to travel and operate and excluding such vehicles and combinations from all highways except those which constitute such truck route system.' Part 20 of this same section allows for the establishment of weight, height, length, and width criteria, for which vehicles in excess of such standards may be excluded from highways or the setting of limits on hours of operation of such vehicles on particular city or village highways or segments of such highways.”

Nor is the DEC alone in believing that road use laws and agreements of the type proposed by the MMTF are legitimate. New York Municipal Insurance Reciprocal (NYMIR) also has a supportive document online at http://www.nymir.org/pdf/NYMIR%20Marcellus%20Roads%20FINAL.pdf.

Among the many municipalities insured by NYMIR are a number of towns in Sullivan County, and one of the things it insures them against is lawsuits. In other words: if people do sue towns that adopt the road use preservation laws, NYMIR will have to pay up. So it is highly motivated to squelch any laws that it thinks may be challenged.

Instead, the NYMIR document devotes an entire section to providing the authority in law for local road use laws and agreements such as those described in the SGEIS (and the MMTF), starting on page 3. In defense of provisions that require road users to pay for repairs of any roads they damage, the NYMIR document cites Highway Law Section 320 in saying, “From a legal standpoint, the Highway Law has long held those responsible for injuring the highways liable for the damage that they have caused.” Like the DEC, it also enumerates a variety of relevant local powers derived from the NYS Vehicle and Traffic Law, supporting for instance the right to establish certain haul routes, implied in municipalities' right to “Exclude Certain Vehicles based upon weight, length, height or limit hours of operation (N.Y. Veh. & Traf. §§ 1660(a)(28), 1650(a)(4-a), 1640 (a) (20).”

According to the Democrat article, it was sections of this precise same law that were cited by the Town of Bethel as being of concern, specifically 1600 and 1604. Do those sections somehow offset or override the other sections I have quoted? Let’s look.

Section 1600 says “The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein.” But note,  it is not municipal road use laws that have to be uniform; rather, it is the provisions of the state law, of which this is a section, that have to be applied uniformly. And those provisions, as we have seen from the quotes above, specifically permit any municipality to construct its own road use laws. They also contain some strictures to which all such laws must conform: for instance, though any town may exclude certain vehicles from designated roads, all towns must make exceptions for deliveries and pickups of property along the designated highways. But the uniformity described here has nothing to do with disallowing towns to come up with a variety of different local road use laws.

What about section 1604? Admittedly, it contains the assertion that local authorities have no power to restrict vehicle operators’ free use of the road. But that assertion is preceded by the opening clause: “Except as otherwise provided in this chapter." And we've already seen some of what is “otherwise provided in this chapter," namely section after section supporting the rights of local municipalities to create road use laws and agreements restricting traffic of certain designated types.

The one issue for which I have not been able to track down any legal basis is the idea that municipalities have the power to require companies to pay to upgrade roads before using them. However, the proposed road use law, at least in the versions posted on the Tusten and Highland websites, actually offers two options: requiring a company to pay to upgrade roads on its haul routes before it starts operations—in which case it would not have to pay for repairs afterwards—or requiring it to pay for repairs after damage has occurred. It is not clear to me what determines which option is chosen, but it looks as though, if a company refuses to pay for an initial upgrade, it can still be held accountable for any damage incurred after the fact -- for which, according to NYMIR, there is strong basis in law.

I don’t know all the legal points the Town of Bethel is concerned with, and I may well have failed to cover some of them here. But on the basis of the information I've found, it's hard to agree that there is a serious legal problem with the proposed road laws.

The New York State Vehicle and Traffic law can be read in its entirety at http://ypdcrime.com/vt/index.htm.

DCS pioneers methane baseline study

Utilizing technology that has only recently become available, a study commissioned by Damascus Citizens for Sustainability (DCS) to obtain baseline ambient methane levels in Damascus Township, PA has just been completed (<http://www.damascuscitizensforsustainability.org/2012/11/damascus-baseline/).

The study shows that methane concentrations are currently fairly low and consistent throughout the township. It also includes a graphic illustration of methane concentrations in Damascus compared to a similar venue in Dimock, PA, where of course natural gas drilling has been going on for some time. Concentrations in Dimock look to be at least four times as high.

Of course, since no baseline study was done in Dimock, we have no way of knowing whether the difference in ground-level methane concentrations is due to drilling, or was there to begin with. But that lack of evidence just goes to emphasize how important it is to have studies like this done before drilling commences in any given area. And one of the exciting features of the Damascus study is that it is apparently fairly economical to conduct, meaning that other local towns should probably consider doing so.

That point was further underlined by the conversation last night at the second meeting of the Town of Delaware, NY's natural gas drilling commission. There, it was pointed out that a number of local water well drillers have commented that, in digging wells, they frequently encounter methane. Hence, it might be concluded that the people in PA who are claiming that drilling activity is responsible for high levels of methane in their water might just be looking for a way to make a quick buck.

It was also briefly conceded that, even if there is methane to begin with, drilling activity could make it a lot worse. But the point is that, without having baseline measurements, whether in water or air, of various contaminants related to drilling, there is simply no conclusive and universally persuasive way to prove the impact drilling may or may not have had. It might be interesting if, in addition to trying to come to a conclusion as to whether hydrofracking would be good or bad for the Town of Delaware, the commission would make some recommendations as to precautionary steps, like baseline studies, that the town could take with regard to drilling if indeed it does continue to adopt a welcoming stance. At least that way, residents who do wind up being damaged would have a strong basis for litigation.

And from the climate change point of view, the methane problem is not just local, but global. A study by Cornell's Robert Howarth concluded that shale gas is responsible for 20% more greenhouse gases than coal on a life-cycle basis, despite the fact that burning natural gas emits less carbon dioxide, because of the methane -- a far more potent greenhouse gas than carbon dioxide -- released during extraction. The study found that up to 7.9% of the methane escapes directly from the wells, leaks from pipelines, or is released in venting and flaring.

I would hope that a number more local municipalities follow the example of Damascus in taking the initiative, where economically feasible, to start taking measurements of the quality of our common resources -- air and aquifers. That quality is perhaps our most valuable asset. Our current economic system unfortunately has not found a way to put a proper monetary value on possessing it -- but that does not mean there will not be a huge monetary cost if we lose it.

A primer on the ad valorem tax: look before you leap

A few weeks ago, Jack Danchak wrote a letter to the Sullivan County Democrat touting the advantages he sees in natural gas drilling, including, among other things, income from the ad valorem tax on natural gas production facilities permitted in New York State.

The ad valorem tax is a property tax that can be imposed by New York municipalities on natural gas production facilities, to be paid by the drilling companies. There are all kinds of questions that can (and should) be asked as to whether any income from such a tax would be sufficient to offset other costs to the municipality, from damage to residential property values, to health costs, to demands placed on law enforcement and infrastructure. However, before considering those questions about the bottom-line net, it is important to take a look at the top line, and see how much the tax is likely to bring in, and how quickly it might do so.

I’ve done some preliminary research on this issue, starting with the online manual by New York’s Office of Real Property Tax Services (ORPTS, http://www.tax.ny.gov/pdf/publications/orpts/oilgasoverviewmanual.pdf). My provisional conclusion is that, given the way the tax is calculated, the current price environment, and the rapidity with which natural gas production declines, the ad valorem tax would not only take a while to click in, but could do so in such a way that drilling companies could avoid paying the tax on the majority of their production.

The ad valorem tax calculation starts with profiles created by ORPTS for each region or type of well. ORPTS bases these profiles on information provided by all the gas drilling companies in the region in question over the previous five years. From this data, it derives a Unit of Production Value (UPV), which is the net cash flow per mcf divided by a discount rate. This unit is then multiplied by the production of any given well in the year to be taxed to produce the assessed value.

The important point to note here is that to obtain the net cash flow, ORPTS subtracts various expenses including operating costs, depreciation, royalties and the like from gross income. Those who have been following natural gas prices and analysts’ commentaries on unconventional shale production costs know that this could create just a little bit of a problem.

For instance, Arthur Berman of Labryth Consulting, a Houston-based geological consulting firm, says that the breakeven point for unconventional shale drilling is around $8 or $9 per mcf. Now look at a graph of natural gas prices since 1975 (http://www.eia.gov/dnav/ng/hist/n9190us3m.htm). During that entire period, prices only broke the $7.50 level twice, once in 2005 and again in 2008, and for less than a year both times.

If Berman is right, there has never been a five-year period during which there would have been positive cash flow on unconventional shale wells. Of course, we do not know whether ORPTS would take into account all the factors Berman is looking at, and probably won’t until and unless they actually start having to do a profile. But it certainly raises a red flag.*

So what would happen if the DEC started permitting gas wells in 2013? First, the process involves a delay. It wouldn’t be until 2014 that ORPTS would collect the production data from 2013 to construct the appropriate profile; in January of 2015 ORPTS would set tentative UPV values and set hearing dates, and it wouldn’t be until May of 2015 that assessors could put the natural gas properties on their tax rolls.

Second, of course, with horizontal hydrofracking, ORPTS would have to construct a brand new profile, whether for the new formation (Marcellus) or for hydrofracking wells as a class. But of course, they won’t have a five-year history. Most likely, they will just start out with one year, go on to a two-year average in the second, and so on until they cumulate to five years. That’s how they did it with the last class they added, Trenton Black River.

But it is highly unlikely that gas prices will rise fast enough in one year that Marcellus wells will break even in 2013. And that means, the UPV for that year, should production commence in 2013, could very well be 0. In that case, it will not be possible to tax the wells in that year. Indeed, on the basis of the natural gas price chart referred to above, there is a real possibility that the UPV will remain at zero for several years

Meanwhile, wells will be producing gas. And because production drops sharply in the initial years, that means the bulk of the gas may well be extracted from the ground without the municipality being able to collect a dime.

It’s difficult to get a hard number on how severe this effect could be here because, although drilling in the Marcellus has been occurring in Pennsylvania since 2005, the state did not require companies to report production until 2010. We do know that it declines over 60% in the first year in another unconventional shale formation, the Barnett Shale, and another 50%-plus in the second year.

For the Marcellus, I found one preliminary analysis of production declines (http://www.sooga.org/studies/Marcellus%20Shale%20Decline%20Analysis%20-%202010%20-%20Brandon%20Baylor.pdf) that projects that out of 2.3 billion cubic feet produced in the first 10 years in a typical well, about a third will be produced in the first year and more than half in the first three years. If gas prices remain low for the first three years, the municipality could, in effect, forfeit its opportunity to tax the majority of that well’s value over 10 years.

Meanwhile, the town will still have to pay all the expenses incurred by hosting natural gas drilling activity. Unless prices suddenly soar through the $8-$9 per mcf level, that will leave a lot of costs that town taxpayers will be hit with. And though cash flow may rise to a taxable level at some point in the life history of the well, the majority of the well's production value may avoid taxation altogether.

Certainly, there are a number of unknowns here. We need to get more reliable estimates of actual production declines in the Marcellus Shale, for instance. And it would be nice to get some idea of whether ORPTS net cash flow calculations include the various factors Berman is including when he comes up with his $8 or $9 per mcf break-even point. But we think the above considerations, at the very least, should alert municipal officials to the fact that the ad valorem tax may not necessarily be a panacea for a town’s financial woes. Local towns should not let themselves be lured by the tax into hosting an activity that will impose expenses for which they find out too late they cannot be reimbursed.

*Those who are not familiar with the work of Berman, Deborah Rogers et al might be wondering why gas drilling companies should continue to drill if they have a negative cash flow. The answer is that they don’t make their money from selling gas; they make it from flipping leases, expanding and overvaluing their reserves to raise their book value and selling equity. It’s a shell game.

On the vacuity of “as long as it’s safe”

As noted in the post “DEP turns a blind eye to drilling contamination?” below, the Pennsylvania Department of Environmental Protection’s (DEP) Oil & Gas Division, when requesting lab results for water samples submitted in connection with drilling contamination complaints, has been using a system of codes that effectively screens out a huge portion of the results that are actually available and relevant

I have read quickly through the deposition taken by the law firm, Smith and Butz, that disclosed this information, and I have to say that at this stage, there is no way to conclude whether or not the practice in question is a matter of deliberate fraud. It might just be good old-fashioned bureaucratic bone-headedness. But the question as to whether it is deliberate or merely negligent should not distract us from the bottom-line conclusion that, for whatever reason, this is one more case in which the state protector is failing to do its job of protecting.

Proponents of drilling repeatedly claim that there no evidence of contamination by hydro-fracking. Well, any purported lack of evidence* is obviously meaningless if nobody is making any meaningful effort to collect it. And the practice disclosed in this case is just one more example of a systematic, institutional inadequacy in the collection of evidence about the environmental impacts of drilling.

There is also, for instance, the nondisclosure agreement problem: in case after case in which contamination and health impacts have been claimed, out-of-court settlements have been made that prevent the public from ever finding out the true substance of the claims or the evidence for them. And then there’s the lack of pre-testing problem: in case after case, contamination is alleged, and because homeowners have lacked either the foreknowledge or the financial means, or both, to test their wells before drilling has commenced, the drilling companies can get away with saying the toxins were there before they started.

The DEP case reveals another problem: issues as to the safety of drilling involve expertise in biochemistry and health issues that the general public simply does not have. If you make a complaint to your state regulators, and they test your water, and they issue a report with 8, or 10, or 12 results, how are you to know that there may be a total of 24 or more substances that should have been tested for? Surely your state environmental regulator ought to be an entity you can trust in this regard. At least in the state of Pennsylvania, that is clearly not the case.

The idea that drilling can be done safely rests, among other things, upon an entirely bogus reliance on a legal and regulatory system that, when it comes to calling big corporations to account, is almost entirely broken in this country. And it is particularly amusing and ironic that the very individuals who are willing to put their wide-eyed faith in the government when it comes to assuring us of the safety of natural gas drilling, are frequently just those who think it should be starved until it’s small enough to drown in a bathtub.

I imagine Smith and Butz, the law firm representing the homeowners alleging contamination in this latest PA case, will go on to depose the individuals who actually used the codes in question to request water testing, and hopefully provide us with more information about what has been falling between the cracks and why. And maybe these particular cracks can be sealed (though not, most likely, as long as Tom Corbett is governor).

But whatever happens with this problem, the broader institutional weakness will remain. Whether drilling can be done safely depends not only on technological matters—which present their own set of issues—but regulatory issues. And there are no foreseeable circumstances under which regulation should be trusted to ensure against an eventuality as catastrophic as the contamination of our aquifers. One more reason why we should move as rapidly as possible to energy alternatives that do not carry that kind of risk.

*Claims that there is no evidence of water contamination due to horizontal hydrofracking also ignore, among other things, the USGS’s recent confirmation of earlier EPA findings that hydrofracking has caused water contamination in Pavilion, Wyoming (http://www.businessweek.com/news/2012-09-26/diesel-compounds-found-in-water-near-wyoming-fracking-site), and the fact that there is an abundance of evidence that there has been contamination related to the entire fracking-related drilling lifecycle, even if not specifically related to the fracturing itself.

PA DEP turning a blind eye to drilling contaminants?

The Cannonsburg, PA law firm of Smith Butz, in connection with litigation it is conducting with regard to alleged water contamination caused by natural gas drilling activities in Washington County, is claiming that the Pennsylvania Department of Environmental Protection (DEP) is systematically and deliberately ignoring test results that could provide valuable information with regard to such contamination.

In a letter to DEP Secretary Michael Krancer, the firm bases its charge on a deposition taken in September from DEP Bureau of Laboratories Technical Director Taru Upadhyay. In the course of the deposition, it was revealed that the lab typically tests for a long list of metals in keeping with EPA standard methods, but only a fraction of the results are delivered to the client—in the context of the deposition, the Marcellus Shale Drilling, Oil & Gas Management department of the DEP.

The limitation is due to the use of certain standard codes in making testing requests to the lab, including 942, 943 and 946, that specify only a restricted list of substances. Code 942, for instance, limits the reporting to only 8 out of 24 metals for which test results are available on a standard basis. In effect, the DEP Marcellus Shale drilling office is apparently asking not to be shown certain test results. In turn, any individual filing a complaint regarding water contamination is barred from seeing those results, and indeed has no way of knowing that such data is even available.

It is not clear from the documents whether it was Marcellus Shale Drilling, Oil & Gas Management that developed the codes in question, or whether the same codes are used by other DEP departments.

In its letter to Krancer, Smith Butz maintains that the results screened out pertain to substances known to be hazardous and associated with Marcellus Shale drilling. Included in code 942 results are barium, calcium, iron, potassium, magnesium, manganese, sodium and strontium. Excluded are results for silver, aluminum, beryllium, cadium, cobalt, chromium, copper, nickel, silicon, lithium, molybdenum, tin, titanium, vandium, zinc and boron.

The law firm also wrote a letter to State Rep. Jesse White (D-Allegheny/Beaver/Washington). White is calling on the U.S. Attorney’s Office and any other appropriate law enforcement agency to pursue an investigation of the DEP to investigate the matter, as well as to the National Environmental Laboratory Accreditation Program (NJ-NELAP), to investigate whether the DEP’s conduct and practices violated the accreditation standards for the DEP laboratories.

A press release from the office of Rep. White can be viewed here: http://www.pahouse.com/PR/046110112.asp

The letter from Smith Butz to Krancer can be viewed here: http://www.scribd.com/doc/111821139/Krancer-Letter

A copy of the actual deposition can be viewed here:

http://www.scribd.com/doc/111821978/Taru-Upadhyay-Depo

Gas commission meeting rescheduled

The meeting of the Town of Delaware's natural gas drilling commission scheduled for tonight at 5:30 p.m. at the Hortonville firehouse has been cancelled. The next meeting will be next Monday, November 5.

Green grow the dollars

UPDATE 10/31/12: the Agriculture and Sustainability meeting, originally scheduled for Thursday, November 1, has been postponed to Tuesday, November 13.

At 1:30 p.m. on Tuesday, November 13, at a meeting of the Legislative Committee on Agriculture and Sustainability at the Government Center in Monticello, NY, Sullivan County’s Office of Sustainability will be fighting for its life. At issue is funding that will decide whether the county can move forward and break ground as a leader and full participant in the green growth industries and lifestyles of the 21st century, or be left in the economic backwaters of an outmoded and increasingly desperate way of life.

Admittedly, the idea of allocating county funds to anything but today’s bills is particularly tough during a period of major financial crisis such as that we currently face, with double-digit tax increases in prospect. Some might argue that matters such as climate change and sustainability are too distant and abstract to worry about in the midst of such an emergency. But even stipulating that premise for the sake of argument*, that way of thinking misses the point.

The plain truth is that the only way you can extract yourself from a deficit on any long-term, ongoing basis is to make your economy grow, and economies are made to grow by bold investment, not by nickel-and-dime cheeseparing. Businesses grow by investing money in new directions, new lines and new means of production. That’s not to say that improvements in efficiency and elimination of waste are not important. But any company that is trying to survive purely by cutting expenses is clearly on its way out the door. The same applies to government.

The steps the county, its communities, businesses and households can take to attain sustainability are all part and parcel of the most vibrant economic trends in the nation—indeed, on the planet—today. Technologies, energy sources, products and services that are part of renewable cycles are what’s up-and-coming around the globe. These practices also, by definition, reduce expenditures in the long run, because they are all about the efficient use of resources. If we fail to connect with such trends, that financial emergency we’re all so worried about is likely to become permanent.

So we must invest somewhere in order to extract ourselves from the current budget bind, and it looks like the place to put our money is the economic trend of the future: green. And maybe that’s also the answer to another question I’ve heard bandied about a lot recently, that of branding. How can we brand Sullivan County to appeal to businesses, tourists, entrepreneurs, homeowners? How about green?

Brand us as not only a rural retreat, but a rural retreat committed to maintaining its open spaces, recycling its resources, generating local energy, constructing zero-energy buildings, making innovations in energy-efficient, low-emission transportation. Brand us as the little engine that could, an area that started out poor and disadvantaged but nevertheless showed others the way in creating a viable way of life that respects and nourishes natural cycles. Do that, and we will have an identity that will be immensely attractive to tourists, second-home purchasers and entrepreneurs from nearby metropolitan areas. And that, in turn, will allow us to incubate business, attract business and create jobs.

 It is this opportunity, as well as a commitment to good environmental stewardship that was opened up when the legislature passed the Sullivan County’s Green Vision Statement and the Climate Smart Communities Pledge. It is this opportunity that the development and implementation of the Sullivan County Climate Action Plan (CAP), with which the CAP Advisory Committee is tasked, should be all about. To take advantage of it, actions will be required at the county level, at the town level, and by businesses and consumers, and it is the business of the CAP advisory panel to enlist the help and participation of all these sectors and facilitate their actions. But seed money is required, among other things to fund a technical support staff to help the volunteer members of the panel, and that’s what Sullivan County lawmakers are being asked for on November 1.

Some of the projects for which funding is being requested will start to generate savings almost immediately, like energy management for county buildings and facilities. Others will take more time, like the collection and analysis of energy use data from Sullivan County towns needed as a basis for developing plans to increase efficiency. But all aim in the same direction: helping us to grow out of the deficit. I hope Sullivan County legislators have the vision to see it as such, and to help the county take its next step toward a better future.


*I am deliberately avoiding here the argument as to whether climate change itself is an emergency—the most dire one we face. I believe it is, and have argued about it elsewhere. But I don’t think anyone has to agree with that belief in order to understand the advisability of investing in this area.

Volunteers sought for emergency shelter in Tusten

Town of Tusten Superintendent Carol Wingert has sent out the following appeal in light of the impending hurricane:

As you all know we have a major storm facing us and the strong possibility of lengthy power outages. If people are out of power too long, we may have people in need of shelter. I am asking for volunteers to man our Emergency Shelter if need be. We will need people to help set up, cook, clean, prepare, and take down. If you can help in any way or know someone who can, please forward to me your contact information, (phone/email) so that I can create a list of folks to contact.

Thank you and please stay safe. ~Carol Ropke Wingert

Truth hurts: mailers but no debate from Lang in Tusten

Tusten voters who have now received five electioneering mailings from town council candidate Ned Lang (six, if you count one mailed during the primary), might want to ask themselves the following question: why is it that Lang is happy sending out mailers, but has turned down at least three proposals to present his views side by side in public with his opponent Andrea Reynosa?*

A brief review of the content of the mailings, which consist largely of unsupported allegations against Reynosa and her allies, rather than specific proposals for improving the town, suggests a possible answer: perhaps Lang’s allegations can’t stand up to the light of day.Here are some of the actual facts behind a few of Lang’s charges:

• The 11-member zoning rewrite committee consists of 10 Tusten residents, including many who are or have been important town officials, plus sewer and water superintendent Dominic Hillard, who currently lives in Callicoon, but is included for reasons too obvious to be explained—and hardly constitutes a majority. The committee is chaired by long-time resident and deputy town clerk Carol Coney, and other members are Supervisor Carol Wingert; councilman, UDC alternate and previous ZBA Chairman Tony Ritter; Planning Board Chairman Ed Jackson; Lisa Dowling, who was a councilwoman when the current zoning ordinance that is being amended was written; Code Enforcement Officer Gary Amerbach, Town Assessor Ken Baim; current ZBA Chairman Kevin McDonough; Sue Sullivan, Conservation Council and UDC representative; and Town Clerk Kathy Michell.
  
  Why any of these is to be considered any less a “stakeholder” than Ned Lang, whose most recent contribution to town governance was to resign from the ZBA last year after having been cited by the town for posting a sign that was larger than permitted by the ordinance then in force—and then engaging in still-ongoing litigation against the town on account of that citation—is a puzzle on which many would probably welcome illumination.

• The Big Eddy Waterfront Revitalization Project would create and enhance public spaces, including rare public waterfront access space, in the hamlet of Narrowsburg. The river walk would be placed about 12 feet below the existing back of the Main Street buildings, so it would not create an additional access to them. By granting easements, Main Street building owners are ceding space and privacy to the general public, not gaining a special privilege. (See “Ignorance is Strength” below.)
• A state grant of $77,000, applied for in 2009 under a different town administration, has been received to go toward the $154,000 cost of the engineering study phase of the Big Eddy project, and additional grant money as well as in-kind matching are to be used to go toward the local share. At no point have $150,000 in Tusten taxpayer dollars been used, or proposed to be used, for this project. For more facts, not fiction, about the project, visit http://www.tusten.org/FAQ_Narrowsburg.pdf
• No one has suggested moving Veterans Park, contrary to the straw man that has been set up in one of Lang’s flyers and in a whisper campaign on the streets; all that has ever been suggested is to enhance it—just as he proposes. The difference is that Reynosa proposed it long before he ever did so, and has already put some elbow grease and fundraising (not taxpayer dollar spending) expertise into the project.

Sending out mailings is fine as far as it goes, but if the mailings aren't complemented by public interchanges, they allow candidates to avoid accountability for what they say. Though it wasn't possible to schedule a Meet the Candidates session with both candidates present, Reynosa plans to engage in a public Q&A session on Saturday, October 27 at 4 p.m. at the Tusten Town Hall. Voters who have questions about Lang's mailings, or more to the point, about what Reynosa plans to do to make the town a better place, should make every effort to attend.

*The three invitations were a proposal for a radio or online debate made by Tony Ritter in a letter to the editor; an invitation to participate in a proposed documentary representing the two sides in the election; and an invitation to the Meet the Candidates event to be held by Tusten Concerned Citizens at 4 p.m. on Saturday, October 27 at the town hall.

Ignorance is strength: the doublespeak attack on Tusten's esplanade

In George Orwell’s “1984,” the government maintained control of the populace largely by the destruction of its capacity for rational thought. It accomplished this goal by dint of a particularly bold and corrosive style of lying that consisted in concealing the truth by simply calling things their opposites: “war is peace, freedom is slavery, ignorance is strength.” (This practice has entered the popular lexicon in the word “doublespeak,” though Orwell himself referred to it in his book with the words “newspeak” and “doublethink.”)

The attacks currently being made in the Town of Tusten against the Big Eddy Waterfront Development Project, aka the esplanade—currently spearheaded by Ned Lang, candidate for a seat on the town council—invoke this Orwellian tactic. What the project is about is providing something that is unfortunately quite rare on the Upper Delaware riverfront, not only in Tusten but all the way along its banks: access to the riverfront for members of the general public, those of us who are not fortunate enough to personally own waterfront land.

The increase of such access up and down the river corridor is in fact an obvious goal for the community to strive for. To begin with, it would improve the quality of life for all who live in the river valley but, ironically, have all too little opportunity to get up close and personal with the river itself. It would also increase the attractiveness of the area to tourists, bringing in more visitors, more business, and more dollars circulating throughout the community. And any hamlet that could provide a particularly attractive access would obviously be particularly competitive in attracting traffic, both local and from outside the area, stimulating business in its environs—and oh yes, boosting the tax base and county sales tax revenue.

Yet somehow, a small cadre in the Town of Tusten has succeeded in creating a foothold of opposition against the town’s Big Eddy Waterfront Vitalization Project, which would accomplish just these public benefits. It has done so by averring, without foundation in fact, that the project would benefit just an elite few businessmen on Main Street.

First of all, the current project, plans for which will shortly be posted in the window of the National Park Service office on Main Street in Narrowsburg, includes a river walk to be built a good 12 feet below the level of the lower stories of the Main Street buildings. It’s true that some of the plans drawn up years ago by planners such as Tom Shepstone called for a boardwalk that would directly abut the buildings and provide entrances to them, essentially expanding the business district. (Frankly, I can’t understand why that would be seen as a bad thing for the town, but under the circumstances I don’t have to even get into that argument. It’s not going to be done.)

So by granting easements across their properties, the current Main Street businesses aren’t gaining new business space or an increase in rental footage. What they are doing is giving up part of their properties to the public, so that people can take a stroll or sit close to the river, something that is not currently possible. They will be losing some privacy, and picking up some potential noise and disturbance. Main Street businesses will pick up only the same benefits that the town as a whole will pick up: more people visiting, more dollars circulating throughout the town.

This is the project that Lang and his cadre have somehow convinced a significant segment of the populace is an elitist project. Yeah. And ignorance is strength.

Some grains as small as a mustard seed

Following the recent sturm und drang in the Town of Delaware surrounding the Roeder Resolution and its aftermath, two resolutions passed by the council tonight at the regular town meeting could present the seeds of a very different direction for the town.

First was a resolution that the town should sign the Climate Smart Community Pledge, essentially a pledge to join in Sullivan County’s Climate Action Plan initiative to reduce carbon emissions by all sectors, adopt sustainable practices and policies—and just incidentally create jobs and economic growth centered around this transformation. Delaware joined the towns of Tusten, Highland and Lumberland in signing the pledge. The town’s next step will be to collect baseline information about its current carbon emissions. After that, it can start developing particular projects, eligible for funding, that can carry forward the plan’s goals.

Second was a resolution to propose Local Law #3, the Delaware version of the Local Road Use and Preservation Law created by the Sullivan County Multi-Municipal Taskforce (MMTF). The law spells out a system to make sure that when new, heavy industrial users come into the area, they, not taxpayers, pay for the damage they inflict on town roads—while screening out existing, traditional traffic by agricultural, lumbering and construction vehicles and the like.

Admittedly, you can’t make too much of either of these at this point. As noted both by Supervisor Ed Sykes and by Michael Chojnicki, who made the request that the council act on the pledge tonight, it does not actually force anybody to do anything. If, once specific emissions-reducing projects have been proposed, the council elects to vote every one of them down, it can still do so.

And the road use law has only been proposed, not voted on—indeed, the hearing has yet to be held. Moreover, in the past year or so, the work of the MMTF has in fact run into opposition in the county from several angles. Some see it as a tacit concession that natural gas drilling activity will be coming into our area, coupled with a mistaken implication that the steps taken by the law adequately mitigate the damage of that activity. (I find these criticisms misguided; see http://www.riverreporter.com/editorial/16/2011/07/12/issue-hand .)  On the other side are people like town council candidate Ned Lang in Tusten, who argues that the law is an unreasonable interference with business activities. We’ll have to wait until the hearing to see if such opposition raises its head in Delaware.

But what is interesting to note for now is that both resolutions passed without dissent either on the council or from the audience, and that means one very important thing: right now, despite all the recent contention, there are a few issues on which people on both sides of the gas drilling rift in the Town of Delaware can find common ground. With regard to the pledge, the common ground is that good stewardship of the environment may be possible to pursue at the same time as economic renewal. With regard to the road use law, it is that it should not be the obligation of small rural households to bankroll industrial corporations’ usage of the taxpayers’ common resources. 

From these small beginnings, perhaps some way forward can be found to a future in which green energy and conservation initiatives, not extractive industries, provide the basis of economic vitality, and town government recognizes its obligation to protect all the common resources of the town—including air and water, not just roads. Pollyanna stuff at the moment, certainly. But the climate plan and road law ought at least provide a place where people can begin to talk about it.

Field & Stream Club files action against Town of Highland re drilling ban

EID Marcellus has posted a news story reporting that the Town of Highland's Field & Stream Club has filed a notice of action with the Town of Highland, a precursor to legal action, claiming that the town has violated its constitutional rights in enacting a law banning the club's ability to access its mineral rights.

http://eidmarcellus.org/marcellus-shale/town-of-highland-gets-sued-over-natural-gas-ban/13991/

Email notification sent to EID by the club's attorney noted that "Additional causes of action are also pled in the Notice of Claim filed with the Town of Highland Clerk on October 5, 2012."

 I have no further information on this at this time.

WWEIII: No, it’s not about wrestling

Friends of the Upper Delaware River (FUDR) sponsored its third annual Water Water Everywhere conference on Tuesday, October 9, coupling technical presentations related to increasing water flows to relieve thermal stress on trout with talks on the power of coalition building to actually implement such policy goals.

All about thermal releases

The technical talks presented three developments that could wind up dovetailing nicely to mitigate the thermal emergencies that have repeatedly threatened the trout in the Upper Delaware’s coldwater fishery in recent years. This year, for instance, there were four instances in which high water temperatures prompted urgent requests by the New York DEC and Pennsylvania Fish and Boat Commission to the Delaware River Basin decree parties (the State of New York, the City of New York, Pennsylvania, Delaware and New Jersey) to release extra water to cool things down. There was a response to only one of these. One of those thermal stress episodes lasted seven days, without relief.

Representative Fred Henson of the NY DEC and Mark Hartle of the PA Fish and Boat Commission noted that one of the problems in obtaining thermal releases is the fact that the decision can only be made by a vote of the decree parties. Reaching the officials who represent the parties and getting them to vote on the issue, let alone getting a favorable vote, presents serious logistical issues. The response-time problem is worsened by the fact that there is a roughly 12-hour lag in getting the water from Cannonsville to Lordsville on the main stem.

Noting that it is politically unlikely that the decree parties will cede their decision-making power with regard to thermal releases to any automatic protocol, Hartle and Henson suggested as an alternative a decision tree that would help objectify the decree parties’ deliberation process, allowing them to come more rapidly and reliably to a conclusion about what needs to be done. The idea is that the creation of clear criteria under which thermal releases should be authorized ought at least to reduce the hemming and hawing time, while tending to encourage a favorable response to requests.

Peter Kolesar presented a work in progress with regard to quantifying, via rigorous statistical methods, exactly how much water needs to be released to relieve thermal stress defined as water temperatures above 75 degrees Fahrenheit, and showing that in the past there would have been plenty of water available to do so within the parameters of the Interim Excess Release Quantity available in the current flow regime. When complete, Kolesar’s models could provide, in effect, a mathematically rigorous version of Hartle and Henson’s decision tree, giving specific criteria for when water should be released for thermal stress purposes and how much. It would also provide the decree parties with the comfort of scientific evidence that the amount of water being released has been calculated for maximum efficiency, so that the desired result is achieved with nothing being squandered. Kolesar expects his work to be ready for prime time in one or two months.

Garth Pettinger of Trout Unlimited gave a presentation on the potential impact of the completion of the Croton reservoir system's new filtration system sometime in 2013. That part of the NYC drinking water system has been offline since 2008, and had been experiencing periodic shutdowns even before then. Pettinger argued that the water newly available from Croton, up to 290mgd, ought to be deducted from the amount drawn from the Delaware system, allowing for much higher Delaware reservoir releases year round.

Some in the audience noted that water from Croton would need pumping to get to NYC, making this a costly tradeoff for the city and one that it is unlikely to concede. But I did some research after the conference and found in the final EIS for the plant (http://www.nyc.gov/html/dep/pdf/croton/execsumm.pdf) that an average flow of 144mgd per day from Croton is anticipated. That amount can be driven by gravity; indeed, in the past, the gravity flow from Croton has supplied about 10% of the city’s water needs, and it goes to customers in low-lying areas of the Bronx and Manhattan.

That 144mgd is not sufficient to carry out Pettinger’s proposed program of increased flows years round, but it is probably more than enough to offset any draws required by the precise targeting of the Kolesar approach, which could potentially make it an easier political sell.

The power of we

The day concluded with a couple of presentations about coalitions, one by Anthony Caligiuri and Kim Beidler of the newly formed Coalition for the Delaware River Watershed (CDRW), and one by Jeff Skelding and Rachael Dawson of America’s Great Waters Coalition. Both presentations pointed out the degree to which the interests of small grass-roots organizations can be leveraged by joining together with other like-minded groups. Such groups can operate on what Skelding called “the NATO principle:” what you do to one of us, you do to all--a principle that can operate both as a shield and a proactive power.

The most stunning statistic with regard to the leverage that can be obtained by coalitions was cited by Caligiuri, who noted of one organization, the Chesapeake Bay Coalition, that the number of individuals represented has grown to 1 million, in an area whose population is 17 million. One in 17 people in that area can stand behind any initiative proposed by that coalition – a very powerful political fact.

In conversation after the meeting, Dan Plummer, chairman of FUDR, which is already a member of both CDRW and the Great Waters Coalition, said he was particularly enthusiastic about the discussion of coalitions. Indeed, the tagline with which Beidler named her presentation, “It’s not just us anymore,” was derived from a remark that Plummer had made shortly after joining the coalition. Expressing his relief at not feeling alone in his efforts, Plummer had said, “It’s not just FUDR anymore.”

In the face of the powerful multinational industrial interests that seem to be engaged in what can only be called a concerted attack on the water resources of the nation including the Delaware, those of us who seek to protect those resources can all too easily feel like ants who have wandered onto a battlefield. Coalitions such as CDRW and the Great Waters Coalition offer the possibility of getting into the fray in a more effective way.

Gas commission gets going

The Town of Delaware’s newly formed commission on natural gas drilling held its first meeting on Monday, October 9, sans Fred Stabbert, who did indeed resign before the meeting (see “Friday evening gossip…” below). Superintendent Ed Sykes, who was there for the first outing but will not necessarily be at future meetings, said he understood Stabbert’s feeling that, as publisher of a newspaper, Stabbert felt he needed to maintain independence. (In answer to a question from the public at the town board meeting at which the names had first been announced, Sykes had listed Stabbert as one of three commission members he considered pro-fracking.)

This first defection notwithstanding, my very preliminary impression is that Sykes may have actually succeeded in doing what he said he wanted to do: appoint a commission composed of members who, while they do start out with a position leaning either for or against fracking, are willing to be open minded about the issue. Commission members are Earl Kinney, Matt Hofer, Kara McElroy, Cindy Menges and Craig Schumacher . The commission itself will select a sixth member, but had not done so as of the end of Monday’s meeting. Menges will be chairman at least until the sixth member is selected.

Although it was hard to tell much from a first meeting at which the discussion was mainly about process rather than substance, I consider it unlikely that this group will follow its unfortunate predecessor in Cochecton by winding up in ideological gridlock. That’s partly because the way the members interacted suggests an ability to work together well, but also because, although the group has not yet even fully articulated what its mission is, as discussed so far it will focus on fact finding rather than policy prescriptions.

As Schumacher put it, "We are out to find the truth," and although that is perhaps an overly simplistic and even naive way to put it, the members' discussion of method suggested a hardheaded and practical approach that could potentially produce some valuable results. Particularly interesting was the insistence on sourcing all information in hard data and primary studies, combined with the admission that even apparently neutral sources like university studies could be influenced by who commissioned and financed those studies. Cindy Menges in particular took a lead on promoting this angle, and said she has worked extensively with statistics and knows how they can be skewed to support almost any point of view. The focus on sourcing, tempered by a healthy skepticism about the apparent neutrality of any source, strikes me as a good place to start.

Whether the town board will be influenced in any way by the group’s findings is, of course, quite another question.

The commission’s next meeting will be on Monday, October 22 at 5:30 p.m. in the town hall, and it will continue to meet weekly for the subsequent month, with meetings probably becoming less frequent as it gets in the groove. The public is welcome, but it is requested that all comments be submitted in writing. A dedicated email address will be established for that purpose.

The request is that all public comments back up any assertion with the source of the facts alleged, including if possible hyperlinks. For the first meeting, the commission is requesting input on what questions the group ought to be seeking the answers to.

My impression is that this group is indeed open to credible information, and it is important that anyone who knows of good primary sources regarding the environmental and economic impacts of hydrofracking provide the commission with links to those studies, or publication information allowing them to obtain hard copy.

Water quality under threat from DRBC proposal?

Bernie Handler of Damascus Citizens for Sustainability has alerted me to a potential problem developing at the Delaware River Basin Commission (DRBC), related to an idea that he had heard proposed at the last regular DRBC meeting on September 12.

The proposal is to eliminate redundancies in DRBC and the individual states' regulation of water discharges in the Delaware River basin. As confirmed by Kenneth Najjar, Manager, Planning & Information Technology Branch of the DRBC, the idea is to shift control over the permitting process to the states, while maintaining as a minimum the standards and criteria for approval currently imposed by the DRBC.  The goal is to consolidate the stream of paperwork in one process. 

Of course, in addition to  paperwork there are issues regarding monitoring and other field work, enforcement and the like. The DRBC would continue to be involved with some or all of these, with the details to be worked out. Najjar said, in fact, that there was a meeting taking place on Thursday to work out just some of those details.

Najjar says it's possible that further information about this issue will be shared at the December 5 DRBC meeting. 

As Najjar pointed out on Thursday evening after the Upper Delaware Council meeting, the states are under tremendous pressure to make all their operations more efficient, and in that context it is no surprise to hear that regulations in the river basin are being targeted, as they do, no doubt, tend to get particularly complex because of the overlay between the interstate organization and the individual states.

The problem is, however, that when it comes to environmental regulators, the term "streamlining" can all too often be code for "making smooth the road for industry at the expense of the environment." We can certainly hope that that is not the case in the current instance--but in that regard it would be useful if all those, both general public and organizations, interested in protecting water quality in the Delaware River Basin, keep their eyes on the process and make sure that any increases in efficiency are not purchased at the expense of effectiveness.

It is of particular concern to make sure that enforcement of DRBC standards does not fall victim to the vicissitudes of political change. It is of no use to have a robust system of standards that will serve to protect river water quality if implementation falls into the hands of a state whose regulatory mechanism is under the sway of industry interests. Tom Corbett's Pennsylvania, bluntly, is a matter of concern; not that there aren't still many highly competent, high-integrity regulators there, but the system as a whole under the Corbett administration has in many ways been gamed to serve industry interests over the past couple of years.(See http://www.riverreporter.com/editorial/16/2011/09/27/interdisciplinary-and-cross-media-huh.)

In any case, this is most certainly an issue we should keep our eyes on.

Gas drilling and the new feudalism

A friend recently called my attention to a post by "Kilgour Farms" over at Natural Gas Forums (http://www.naturalgasforums.com/index.php/topic,17939.msg232166.html#new) that draws a parallel between the Anti-Rent War that occurred in upper New York State in 1846, which “put to rest fuedelism (sic) in America,” and the struggle of some current landowners to lease their land for natural gas drilling.

I agree that feudalism has raised its ugly head again in the current debate over natural gas drilling in our area. But it is not the small landowners trying to preserve the rural residential character of their neighborhoods and the value of their land by keeping out heavy industrial activity who are behaving like feudal overlords. It is, duh, the large landowners who are trying to leverage the power of their acreage to impose land uses that serve their own private interests, regardless of the costs to small landowners and renters in the community.

During the Anti-Rent war, (http://www.oneonta.edu/library/dailylife/protest/index.html), tenant farmers were protesting a system in which large landowners leased  their land to farmers via perpetual leases rather than selling the land outright. The landowners retained the rights, among other things, to mineral, lumber, and water rights. Presumably it’s the “mineral rights” phrase that struck a chord with Kilgour Farms, with the modern-day analogy being government as the evil landowner, and large landowners like Kilgour being the downtrodden.

Only one problem: in our country, governments that derive their powers from a democratic system with one vote per man—especially the municipal governments that control most land use issues—are light years away from a single landowner who has nothing to consult but his own wishes. The body that, in some towns, is telling large landowners that they cannot host large-scale industrial activity is composed of their more numerous neighbors, each of whom stands to suffer more grievously from what the large landowners want to do than the landowners stand to gain.

After all, the pro-drilling landowners have held their land for years without even knowing the option of gas drilling existed. All they are giving up is a hitherto unknown opportunity. Small property owners stand to lose pretty much everything they already have—their health, a contaminated water supply, their homes and the majority of their wealth due to revoked mortgages by banks unwilling to take the risks associated with gas drilling.

Note, by the way, that these same municipalities have for years granted huge tax breaks to these large landowners in return for their good stewardship of the land for, e.g., forestry purposes—and the same small landowner neighbors have paid a disproportionately high share of taxes to make that possible.

All of this bears no relationship to the private individual landowners imposing their will on their small tenants that the Anti-Rent war protested.

On the contrary, when Noel van Swol of the pro-drilling Joint Landowners Coalition of NY stands up in the Town of Delaware meetings and prefaces his remarks with how many acres he represents in the town—and refuses to answer the question, “and how many people do you represent?”—he is reflecting precisely the view of the medieval overlord: my land is my might, and you must do deference to it. It’s not about people. It’s about land, and who owns the most. And my land makes my will law.

In his post, Kilgour quotes an Anti-Rent leader, Dr. Smith Boughton: "The purpose of our society is not for the few of maximum strength and ambition to lead lives of Byzantine glory, but for men to make the most of their common humanity.”

Indeed. Hence the importance of preserving our common assets, like clean water and air, essential to the wellbeing of all—even if it deprives a few of a special windfall that allows them to "lead lives of Byzantine glory."

Fear and loathing in Denver

I made an honest try to listen to the Presidential debate, I really did. But I only lasted about 20 minutes. It was like listening to two guys at a bus stop argue whether Obama or  Romney should become President. Neither one of these clowns seemed to know or understand any more about their economic ideas than I do, which is not a high bar.

And is there some reason Obama didn't jump all over Romney when he kept saying, "the share" paid by upper income people would not decline under his tax proposals? The trick here of course is the word "share," referring to the fact that he plans to cut rates across the board by 20% -- but boy howdy is that going to come to a different number of dollars for the one percent and for you and me. It's terrifying to think of my financial future as being in the hands of either one of these guys. As is all too often the case, I was left after my 20 minutes with the conclusion that if things are going to get better, it's all going to have to be by the bootstraps.

Friday night gossip at the Callicoon Wine Merchant

Shouldering my way into the Callicoon Wine Merchant at sixish on Friday, I ran into a friend who is a member of the Loyal Opposition. I say "shouldering my way in" because there was a considerable crowd of people standing around talking, some holding glasses of wine. I wondered if it could be a political fundraiser -- it's the season, after all -- but my friend told me no, it's just Friday night after five at Callicoon Wine Merchant. Apparently there's a bit of a mini-bar-scene there that I had not been aware of.

After making it to the cash register to pay for the cosmetically flawed but ambrosial Honey Crisp apples that I had picked up from a wooden crate sitting on the bench outside, I returned to my friend for a bit of a gossip. He said he had a couple of tidbits for me, both of which proved related to the natural gas drilling commission which had been approved two town meetings ago, and whose members' names (supposedly) Ed Sykes had announced at the most recent meeting.

Tidbit one (add salt for the hearsay) was that someone had told my friend that Fred Stabbert, one of the named commission members, has said that he is not pro-gas drilling, and therefore is going to resign. We were both scratching our heads over that one. It's true that Ed described Stabbert as one of the three members of the six-member commission who tended to lean pro, but Sykes also reiterated that the whole point was to find people who are not rabid either way. Combining what is generally perceived as the somewhat pro stance of Stabbert's newspaper with his personal (if this hearsay is correct) affirmation that he is not pro drilling, that might actually bring him pretty close to the balance Sykes is looking for. So why quit? All I can think of is that he's not happy to be designated as holding one position or the other in the case of something so controversial. In that case, I would imagine he can be persuaded to stay on the commission once he has made his objection to Sykes' characterization clear.

Tidbit two, without going into specific names to protect the innocent, is that another named member admitted that Sykes had spoken to him, but had not agreed to be on the commission and indeed didn't want to be--it apparently came as a surprise to him that he had been publicly named. But once he was told he had been named, so the tale goes, he allowed as how maybe he'd agree to be on the commission after all.

 As noted, add salt. But the general impression is that the gas commission is a bit up in the air. I wonder if any of the members, for instance, has been charged with convening an initial meeting? Or if they're all sitting around waiting for somebody else to get started -- those who are aware they are on it and are unequivocally willing to accept the appointment.

 Meanwhile, Callicoon Wine Merchant owner Robin says he will have more apples out there on Sunday, September 30. You can't beat $1 a pound, they're clearly local, and they beat those shiny round things in the supermarket all hollow.

UDC chestnuts pulled out of the fire

Given an increasingly isolationist, do-nothing and even anti-environmental bent in the past year or so, it has sometimes seemed that the UDC is in the process of marginalizing itself. Its raison d'etre, after all, is to administer the plan that protects the values for which the Upper Delaware River was designated as part of the Wild and Scenic River system. Had the new five-year plan boasted a list of priorities with "protecting private property rights" at the top, as it came close to doing, that might just have been the nail in the coffin.

This danger was averted at the September meeting, with a series of maneuvers led by Town of Highland Superintendent Andy Boyar, principally assisted by the NY DEC's Bill Rudge and National Park Superintendent Sean McGuinness, with other including Sue Sullivan, Larry Richardson and even, at the end, Jack Niflot chipping in bits from the sidelines.

It became apparent early in the discussion that the WURM committee's proposal of re-voting the workshop poll that had produced the list in question was not going to fly. Indeed, it looked like it might be game over altogether when Al Henry, who had spoken strongly for the re-vote idea at the WURM meeting, nevertheless made a motion at the full council meeting to vote on the five-year plan as-is, which is to say, including the list with "private property rights" as the number one concern. A vote to approve the plan at that time might very well have gone through. But it was at this point that Boyar intervened with a motion to amend.

It's a perfect example of a case in which experience--and knowledge of Robert's Rules--counts; as Boyar knew, and I and others learned, a motion to amend is the one kind of motion you can interject, and have discussed and voted on, when there is another motion on the floor. Boyar obtained a reprieve by picking up a ball that had been thrown by Rudge: a rewrite of the number one priority that put private property rights back where they belong, that is, as an adjunct to the protection of the river. The resulting rephrase was almost verbatim a combination of the number on and number four goals listed on page 13 of the River Management Plan (RMP): "Protect the unique scenic, cultural and natural resource values of the Upper Delaware Scenic and Recreational River and its immediate environs [number one] while protecting private property rights [number four].”

Boyar may have perhaps over-praised Rudge's offering a bit in saying that, like the Gettysburg Address, it's the kind of thing nobody would want to change a word of -- but his intervention in moving to amend the original motion to approve the plan had the desired effect. The bulk of the discussion turned to how Rudge's suggestion should be changed, not on whether, and the momentum of the meeting shifted decisively. McGuinness helped provide the final push by saying that it might be okay to keep the language as is, with private property rights number one, if everybody would concede what that actually meant according to the RMP. He then went on to enumerate all the steps, e.g. regular conformance reviews, strict adherence to ordinances, strict enforcement, etc. etc., all of which in fact amounted to nothing more than what the RMP has been telling us all along. But it was a bit too rich for the blood of Deerpark representative Dave Dean, who said he could go along with some of it, but not all. In comparison, the Rudge compromise probably started to look pretty good.

By this time the sheer lateness of the night was taking its toll, and Jack Niflot of Fremont, typically a swing vote, did his bit by pointing out that they had started out with a perfectly simple, perfectly good motion by Boyar and maybe they just ought to stick with it. In the end, a very slight modification of Rudge's language was approved (replacing the word "respecting" with "protecting" private property rights). Perhaps most surprising of all, the vote seemed to be virtually unanimous -- it looked like Peckham voted "no", and there may have been some abstentions.

Of course, the proof will be in the pudding as to how the council members actually use this five-year plan going forward. But at least we will be spared arguments in which someone puts forward a motion on the grounds that it protects private property rights--even if it has nothing to do with, or even harms environmental resources--and justifies it by referring to the list of priorities in the five-year plan.