Since I wrote back in July that two trade associations had filed suit challenging the constitutionality of the New York City law, NRDC made the decision to become a formal party, intervening as a co-defendant with the City. (The Electronics TakeBack Coalition has posted all of the court filings on its website, along with other helpful background information on the suit.) Our decision to do so was for two principal reasons.

First, NRDC’s history with the City law is long and deep. We helped draft the original bill language and worked closely with its sponsors and other policy makers to make it as strong and effective a law as we could. We were a leading advocate for the bill’s passage, putting together an impressive coalition of supporters representing not only the environmental community, but also recyclers, retailers and some manufacturers, which helped push it over the finish line. So we felt we had a strong organizational stake in seeing the law upheld.

Second, as part of a national coalition advancing takeback laws in states across the country, we felt it critical that we do all we could to ensure that New York City’s takeback law survived industry’s attack. Why is it so important to defend this one law? Because the lawsuit is so broadly drafted that – if successful – it would put every takeback law in the nation at risk. The manufacturers claim that they don’t object to producer responsibility generally (and are happily complying with the e-waste laws in 19 other states), and that their only beef is with the City’s law – which they contend is more onerous than any other law. But their 5 constitutional challenges (running the gamut from the Commerce Clause to Equal Protection to Takings) don’t just attack the City law. They attack the fundamental principles embodied in producer responsibility. (See this factsheet for concrete examples.)

Moreover, it is not in fact New York City’s law that contains their most complained of aspect, it is the implementing regulations. Specifically, industry complains about a single provision in the regulations that requires them to offer City resident the option of direct collection for heavier e-waste items (in addition to mailback programs, collection events and permanent collection facilities). Yet this so-called “direct collection” requirement stems directly from the inclusion in the law of a provision they requested: one requiring that City residents be provided with “convenient collection.” At industry’s behest, this requirement was inserted in lieu of NRDC’s preferred approach, which would have required that they collect mandatory minimum amounts of waste each year, but leaving it entirely up to them to figure out how best to do so.

In other words, because computer and TV manufacturers now don’t like the way the convenient collection standard they insisted on including in the City’s law has been interpreted, they have filed a lawsuit that could bring down the whole takeback movement. Make no mistake: this is producer responsibility on trial.

NRDC, together with ETBC and other advocates and supporters for the producer responsibility approach, held a press briefing yesterday on the lawsuit, which resulted in a good amount of blog and trade press coverage. (ZDNet’s piece has a poll at the end where you can go and vote for option 1: manufacturers should bear responsibility for managing their discarded electronics.) We not only explained what’s at stake for other state producer responsibility laws, but also exposed industry’s lie. While they regularly tout their green credentials, some even claiming to embrace producer responsibility, the breadth of the New York City lawsuit lays bare that they want to kill the approach wherever it’s adopted.

We are confident that New York City’s – and all of these other takeback laws – are constitutional. And we look forward to our opportunity to argue our case to the judge (which is currently scheduled to happen in early February).

For the meantime, New Yorkers continue to be deprived of a citywide e-waste recycling program. Fortunately, organizations like the Lower East Side Ecology Center, partnering with progressive retailer Tekserve, continue to offer periodic collection events. See this release about an upcoming event this weekend, and visit LESEC’s website for information on upcoming events.

But while these events are most welcome and help bridge the gap, we desperately need a comprehensive e-waste law that will give all New Yorkers access to a free, convenient method for getting rid of their accumulating stockpiles of unwanted electronics.

While we help defend the City’s attempt to do so, we will also keep up the hard push for a New York State law extending this right to all New Yorkers.

Today a New York Times editorial issued the same call, writing:

"The threat has not ... disappeared. Chesapeake['s] ... decision is voluntary and not binding on other oil and gas companies. New York State needs to adopt regulations that place the watershed permanently off limits, while imposing the strictest possible safeguards on drilling anywhere else where drinking water supplies might be affected."

This is just the right message and one that it's time for Governor Paterson and the Department of Environmental Conservation to heed.

While Chesapeake continues to deny that drilling in the watershed would present any risk to human health or the environment, its decision not to drill there represents at the very least an implicit acknowledgement of what NRDC and slews of others have been saying all along: to do so would be, well, crazy.

The entire western portion of the City's watershed sits atop the Marcellus Shale, a tight rock formation that is believed to contain significant quantities of natural gas that can only be obtained using the controversial hydraulic fracturing technology.  Because hydraulic fracturing involves blasting millions of gallons of water mixed with chemicals into the rock to free the gas trapped within it, the fact is that it does run the risk of contaminating the City's drinking water supply if conducted within the watershed.  Other aspects of gas production in the Marcellus - including sedimentation from land clearing for well pads, access roads and feeder pipelines, as well as significant hazardous wastes generated throughout well development - would present additional risks to the City's water quality.  Addressing contamination by any of these sources would run to the billions of dollars.

So let's be clear about what Chesapeake's announcement does and doesn't mean:

• It does mean that the roughly 5,000 acres leased by Chesapeake will remain undeveloped as long as Chesapeake holds the leases, probably another handful of years in most cases.
• It doesn't mean that those leases won't be purchased by someone else and developed in the future.
• It doesn't mean that any of the remaining thousands of acres of private land in the watershed won't be leased and developed.
• It doesn't mean that - should gas prices rise and the Marcellus prove viable three, five, ten or even twenty years from now - every gas company out there (and there are dozens) won't be knocking on the watershed door. Indeed, given its continued denial of the obvious health risks, there's nothing to say that Chesapeake itself won't come back around. After all, once the companies start drilling in the Marcellus, they will be here for decades.

So, while Chesapeake's announcement sounds the right note, it must be followed by swift action by the state to make the ban on drilling in the NYC watershed complete, permanent, and legally enforceable.  Given that the self-proclaimed sole leaseholder in the watershed has claimed it doesn't intend to drill, there can be no further excuse for anything less.

CALL TO ACTION:

In the meantime, of course, NRDC and our allies remain dedicated to ensuring that the remaining parts of the state facing the prospect of Marcellus drilling receive the utmost protections (including additional bans where appropriate).  To that end, we continue to work with our technical experts to carefully review the recently released draft generic environmental impact statement and develop a thorough set of recommendations as to its analyses and proposals.

But the state has only given the public 60 days to review this highly technical 809-page document.  This is not nearly enough.  Call on the Governor now to direct the Department of Environmental Conservation to extend the public comment period by no fewer than an additional 60 days (or January 30, 2010).  You can call the Governor at 518-474-8390 or visit his website to email him and send this critical message.

And in the interim, be sure to weigh in at one of the four public hearings DEC is holding on the draft EIS.  The first one is at the Sullivan County Community College in Loch Sheldrake tonight.  The dates and locations of all the hearings (sign-up for all of which starts at 6 pm) are:

• Wednesday, October 28, Sullivan County Community College, E Building, Seelig Theatre, 112 College Rd., Loch Sheldrake, NY 12759.
• Tuesday, November 10, Stuyvesant High School, High School Auditorium, 345 Chambers Street, New York, NY 10282.
• Thursday, November 12, Chenango Valley High School, High School Auditorium, 221 Chenango Bridge Rd., Chenango Bridge, NY 13901.
• Wednesday, November 18, Corning East High School Auditorium, 201 Cantigny Street, Corning, NY 14830.

You can also submit written comments directly via email to DEC at dmnsgeis@gw.dec.state.ny.us.

This is arguably the most significant new industrial activity proposed in New York in a generation.  Let your concerns be heard.

Last week, New York State came closer to breaking ground on a controversial gas drilling practice upstate in the drinking water sheds for 15 million people in New York and surrounding states - including the 9 million New Yorkers who rely on the New York City watershed for clean, unfiltered drinking water. They're telling everyone it's safe - but if the incidents of contaminated water, spills and dead livestock popping up on a weekly basis elsewhere in America aren't enough to convince you, allow me to explain.

Natural gas may be an important transition fuel as we move toward a clean energy economy. However, the particular drilling method in question is highly controversial.

The 809-page draft  Environmental Impact Statementfor natural gas drilling in the Marcellus Shale formation put out by the New York State Department of Environmental Conservation represents the state's effort to evaluate the potential risks associated with using hydraulic fracturing (commonly referred to as hydrofracking) in the Marcellus. Hydrofracking is a highly controversial technique that pumps millions of gallons of water mixed with undisclosed chemicals and sand at extremely high pressure to break open tight rock formations and allow the natural gas they contain to flow out for collection.  

DEC - and the industry - contend it'll be different here, championing the fact that the document includes more stringent measures than what we have seen in most other states with hydrofracking. But the reality is the bar is set so abysmally low elsewhere that it's a cold comfort. In other words, it isn't hard for New York to claim a better proposed regulatory regime than exists elsewhere. Whether what New York has proposed is strong enough to fully protect health and the environment will require a much more searching analysis.

And now the state is proposing to allow this dangerous, controversial drilling method in areas that supply drinking water for millions of people. As a New Yorker who enjoys drinking safe tap water and an environmental lawyer tasked with protecting this resource for everyone, I find it absolutely unacceptable that the state is willing to put everyone who drinks this water - more than half of its entire population - at-risk of drinking dangerous chemicals. Especially while we're watching the consequences unfold around the country.

Safe drinking water is worth billions of dollars to the U.S. economy and when accidents happen it's tremendously expensive. The state needs to proceed carefully from the start, and not let hopes for a quick buck blind it to the greater underlying costs that could come with it - financially and to human health.

Let's be really clear. No matter how safe the industry claims hydrofracking to be, their claims are based on a history of ignorant bliss. If you don't look for problems, you won't find them.  If you don't look for the cause when problems do arise, you won't know what it is.  That's the reality of hydrofracking.  No one can plausibly say it's safe because no one has done an objective, scientifically sound analysis.  When we're talking about drinking water (and other precious resources), the burden must be on industry to demonstrate safety, and the precautionary principle must apply.  The question now is, does what's in this EIS properly rely on those fundamental precepts?

It will take us and our technical experts some time to comb through the EIS and provide a detailed assessment. But at first-blush, we're seeing some red flags:

1. The state gives fracking a greenlight in our watersheds, and there are no limits in special ecological areas.  NRDC, environmental allies and a slew of elected officials have called for especially vulnerable and valuable areas (including the New York City watershed) to be placed off-limits, and, of course, for the most stringent safety precautions where drills are allowed to break ground.
2. It underestimates the potential scale of the costs.  The law requires that cumulative impacts be evaluated - in other words, the state must assume gas companies will drill as much as they are allowed to. But on first read, it doesn't. One thing we can be certain of is that gas prices and other economic indicators will drive how quickly the Marcellus is developed.  A reasonable worst-case assumption is the appropriate means of letting the public know what the maximum, reasonably likely potential impacts will be.
3. DEC practically shuts the door on the public.  DEC has only provided the public with 60 days to review and comment on this massive document.  Yet this is the last opportunity the public has to weigh-in on a major new industrial activity that has the potential to contaminate our water supplies, air and land if not properly managed. Equally troubling, the state is not providing for public hearings - just "informational sessions," at which the public will not be allowed to testify.

Not to mention that even with better regulations, we know how understaffed the DEC is right now - it simply does not have the resources to properly implement and enforce those requirements. At the end of the day - where will the resources come from to follow through on the proposed protections?

There are still many questions that remain unanswered. In the coming weeks, NRDC will be fighting to increase the public participation opportunities available to comment on this critical document so the people at risk have an opportunity to express their concerns.  We will also be working with our experts to thoroughly digest and evaluate its contents and to provide a comprehensive list of recommendations that we believe would be necessary to ensure that all public drinking water supplies and other natural resources are fully protected from the threats posed by gas drilling.

Stay tuned to this blog for further developments; we'll be posting information about how you can get involved in protecting the state's water and other natural resources in the days and weeks ahead.