The Fracking Report In Historical Perspective

Governor Andrew Cuomo’s decision in December to ban the use of hydrofracking in New York State was politically astute. The governor asserted he is merely following the recommendations in a new report from the State Health Department, A Public Review of High Volume Hydraulic Fracturing for Shale Gas Development.

That report, based on four years of research, is also politically judicious. It avoids condemning hydrofracking or sensationalizing its potential health risks. Instead, it concludes that “the overall weight of the evidence from the cumulative body of information” studied for the report demonstrates that there are “significant uncertainties about the kinds of adverse health outcomes that may be associated with HVHF [High Volume Hydraulic Fracking], the likelihood of the occurrence of adverse health outcomes, and the effectiveness of some of the mitigation measures in reducing or preventing environmental impact which could adversely affect public health.” The 184-page report is buttressed by 74 references, mostly well-documented studies and reports from the past few years.

Cuomo is following in a tradition of New York governors who relied on expert, scientific reports as a basis for making policy on hard environmental issues. Their are a number of examples that demonstrate both the strengths and limitations of this approach.

For instance, in 1907, Governor Charles Evans Hughes (1907-1910) asked the State Health Department for advice about pollution of the Hudson River. That department’s 1906 annual report had declared stream and lake pollution “a sin against the public health, a crime that strikes a deadly blow at the comfort and lives of our fellow citizens.”

Hughes anticipated a report recommending strong state action, but the Department’s commissioner, Dr. Eugene Porter, was independent and unpredictable and his 1908 report to the governor was surprisingly equivocal. Industrial wastes discharged into streams “do not carry with them the germs of disease and probably very few bacteria at all, and… many of the chemicals discharged with them will have germicidal properties,” the report stated, so their potential harmful effects should be regarded as “very slight.” But at the end, the report shifted its tone, declaring that “the conditions found to exist in the Hudson river constitute a public nuisance, causing injury, inconvenience, annoyance and discomfort.”

In light of the inconclusive report, Hughes straddled the issue. In his 1909 annual legislative message, he condemned pollution of the state’s waters but warned that the state’s industries could suffer if forced to institute expensive waste treatments. He called for “proper experimentation under state authority in order that as soon as possible means may be devised for a complete protection of our streams from pollution without industrial dislocation.” Hughes endorsed a bill expanding Health Department authority to investigate and regulate pollution but did not actively work for its passage and the bill quietly died.

Governor Alfred E. Smith (1919-1921, 1923-1929) asked the Conservation Commission (predecessor to today’s Department of Environmental Conservation) for a report and recommendation on stream pollution. The report, issued in 1923, decried the “popular tendency to exaggerate the destructive effects of stream pollution and to impute to it many ill effects for which it may be only in a minor measure responsible.” Most chemical pollutants pouring into streams are quickly diluted and scattered, posing little threat, it argued.

In fact, the report found, using a stream to dispose of “the wastes of life and human activity” was “the most natural use of a stream”. The whole issue needed more study, the Commission insisted: “There is general lack of exact information as to all phenomena connected with the subject, so that the setting up of standards of allowable pollution is a matter of great difficulty.” Its main recommendation was creation of a new “Conservancy Commission” to further study and develop regulations to control pollution. That recommendation ran counter to Smith’s plans to reorganize and consolidate state government, already well along. The governor continued the Health Department and created a Conservation Department to supersede the Conservation Commission. The report did not provide a concrete basis for policy to address the pollution issue and Smith did not pursue the issue.

Governor Thomas E. Dewey (1943-1955) took a more deliberate, synchronized approach. He worked with legislative leaders who created a Subcommittee on Pollution under a joint legislative committee on interstate cooperation. The subcommittee’s report, released early in 1949 after over two years of study, expressed alarm and urgency about water pollution. More than a billion gallons of untreated filth was flowing into New York’s water courses every day, said the subcommittee’s chair: “The staggering burden borne by New York’s waters consists of raw sewage from 115 municipalities with a population of 4,726,000 plus corrosive or putrid wastes from thousands of industries.” The report recommended creation of a Water Pollution Control Board, consisting of the commissioners of Health, Conservation, Agriculture and Markets, Commerce and the Superintendent of Public Works, to regulate discharge of sewage, industrial and other wastes into lakes and streams.

In his 1949 annual message to the legislature, Dewey called for “prompt action” based on the report and he worked quickly with legislative leaders on a bill to carry out the report’s recommendations. The bill garnered the support of the State Conference of Mayors and New York City authorities who were alarmed at the report’s documentation of danger to municipal water supplies. The business community mostly acquiesced, recognizing that there would be little risk of overly-restrictive anti-pollution regulations from a board comprised of Dewey’s appointees, since the governor was pro-business. The bill passed easily a few weeks after introduction, a triumph for shrewd use of a report to precipitate action.

Of course, there were reports and anti-pollution policy documents after that. The evidence cited above however, shows that reports can lead to policy formulation, but only when they are decisive and governors know how to use them. Governors Hughes and Smith received equivocal reports from their experts, which frustrated policy action. Governors Dewey and Cuomo had well-documented, concrete reports that framed the issue and advanced definite recommendations.

Illustration: George Bellows, “Up the Hudson” (1908).