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Oil-By-Rail: A Battle Between “Right to Know” & “Need to Know”

11:35 am in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog 

BNSF Oil Train preparing to head north.

BNSF claims their oil train routes are secrets protected by law.

Since the first major oil-by-rail explosion occurred on July 6, 2013, in Lac-Mégantic, Quebec, citizens in communities across the U.S. have risen up when they’ve learned their communities are destinations for volatile oil obtained from hydraulic fracturing (“fracking”) in North Dakota’s Bakken Shale basin.

As the old adage goes, ignorance is bliss. It’s also one of the keys to how massive oil-by-rail infrastructure was built in just a few short years — the public simply didn’t know about it.

Often, oil companies are only required to get state-level air quality permits to open a new oil-by-rail facility.

Terry Wechsler, an environmental attorney in Washington, recently explained to Reuters why there was no opposition to the first three oil-by-rail facilities in the area.

“There was no opposition to the other three proposals only because we weren’t aware they were in formal permitting,” he said

The same thing unfolded in Albany, N.Y., where there is an ongoing battle over expansion of the major oil-by-rail facility set to process tar sands crude sent by rail from Alberta. The initial permits for the oil rail transfer facility, which would allow two companies to bring in billions of gallons of oil a year, were approved with no public comment.

Oil and rail companies know well that they can proceed with their planned expansions more easily if communities remain unaware of their plans.

And now that some states — including North Dakota — have defied their efforts to keep the public in the dark about the crude-carrying trains, the public will have a much clearer idea of what’s going on.

A case in point, DeSmogBlog recently revealed crude-by-rail giant Burlington Northern Santa Fe (BNSF) moves up to 45 trains a week in some North Dakota counties and up to three dozen in others.

Big Rail’s Big Bluff

The rail industry has enjoyed a long history of legal protections, allowing it to operate in secrecy with regards to carrying hazardous materials. Indeed, Big Rail pushed hard to fight the release of information to the public on the transportation of Bakken crude oil.

This time around, the rail industry said that information it was compelled to give the federal government on its Bakken oil shipments under the U.S. Department of Transportation’s (DOT) May 7 Emergency Order could not be released to the public under state-level open records laws.

Why? Because it fell under the category of “sensitive security information.”

In boilerplate letters and contract proposals sent to heads of State Emergency Response Commissions — one of which was obtained via Idaho’s Public Records Act by DeSmogBlog — BNSF deployed this argument.

This legal designation means BNSF and other companies could withhold information regarding the movements of Bakken crude from the public — by exempting it from state-level open records laws — and would only have to release it to the emergency response commissions.

“It is important to note that this information is subject to several restrictions on its release and exemptions from both state and federal applicable Freedom of Information laws and should only be provided to persons meeting with the appropriate need-to-knows discussed below,” BNSF wrote in its boilerplate letter.

BNSF considers this information commercial confidential and business confidential information and Security Sensitive Information pursuant to Federal law, and the documents have been marked accordingly.

But despite BNSF’s legal claims, some states have released this information in response to open records requests. And the federal government has also leaned toward advocating for greater transparency.

The U.S. Transportation Security Administration (TSA) confirmed by e-mail to the Sacramento Bee that the administration did not consider this information “security sensitive,” stating, “TSA has not made a finding as to whether or not information concerning the volume of crude oil train traffic or the routes used by these trains is considered security-sensitive information.

The Federal Railroad Administration also concluded information about Bakken crude was not considered sensitive security information.

Community’s Right to Know

The U.S. Environmental Protection Agency’s website contains a section on right to know laws. That section opens by stating, “Every American has the right to know the chemicals to which they may be exposed in their daily living.”

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NY Fracking Decision Delayed by Cuomo, Too Early to Pop Champagne Bottles

3:41 pm in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

Andrew Cuomo

Fracktivists stand firm while Cuomo waffles.

New York Democratic Gov. Andrew Cuomo’s administration – led by a potential 2016 Democratic Party nominee for president - has announced it won’t achieve the late-Feb. deadline it set on whether or not it would green light shale gas drilling, known by most as “fracking” (hydraulic fracturing).

This announcement fell a day after DeSmogBlog released what “fracktivists” have now dubbed the “New York Fracking Scandal” documents, also housed on NYFrackingScandal.com.

These documents reveal that Cuomo’s chief-of-staff, Larry Schwartz, has thousands of dollars in stock portfolio investments in oil and gas corporations with a financial stake in fracking proceeding in New York, a possible violation of the state’s conflict-of-interest law and potentially a form of insider trading. The documents also detailed that lobbyists from these very same corporations have also had VIP meetings with Cuomo’s top-level aides in the past several months, granted prime access to the Administration to influence-peddle in the run-up to the looming fracking decision.

Yesterday, citing the necessity to “let the science determine the outcome,” NY Department of Health Commisioner (DOH) Nirav Shah wrote that the DOH ”will require additional time to complete based on the complexity of the issues” in a letter to NY Department of Environmental Conservation (DEC) Commissioner, Joe Martens.

Shah closed his letter by stating, “Whatever the ultimate decision on [fracking] going ahead, New Yorkers can be assured that it will be pursuant to a rigorous review that takes the time to examine the relevant health issues.”

Martens offered a brief response, concurring with Shah and writing that ”the science, not emotion, will determine the outcome.”

Front-line fracktivists see the Administration’s reprieve as a positive development – at least for now.

“Commissioner Shah is correct that the state needs to take the time to do a comprehensive study of the health effects of fracking to protect the public health,” said Sandra Steingraber, previously interviewed on DeSmogBlog in late-2011 about her latest book, “Raising Elijah.”

“As he notes, no comprehensive studies have been done to date and New York must do so before making a decision about fracking. We are confident that such a review will show that the costs of fracking in terms of public health are unacceptable.”

A recent webinar hosted by one of the outside peer reviewers of the delayed DOH study, though, reveals that the water here is a bit muddier than it appears on the surface.

Concerned Health Professionals of NY: DOH Review Fatally Flawed

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New Gas Industry Astroturf: Landowner Advocates of NY Buses Activists to Albany Pro-Fracking Rally

6:54 am in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

A pro-fracking rally held on Oct. 15 in Albany, NY was described by about a dozen local media outlets as a gathering of roughly 1,000 grassroots activists from all walks of life.

All came out to add their voice to the conversation regarding the extraction of unconventional gas from the Marcellus Shale basin in New York state. But the marchers weren’t concerned landowners worried about losing their water supplies or property values. Their demand: to lift the current moratorium on fracking, which was prolonged by Democratic Gov. Andrew Cuomo on Sept. 30.

One rally attendee, Doug Lee, described the ongoing fracking moratorium as a “communist act” to the Albany Times-Union. Another described anti-fracking activists as “well-funded and organized activists masquerading as environmentalists, who often do not need to make a living in our communities.” Republican Sen. Tom Libous, observed that Hollywood stars Mark Ruffalo and Debra Winger weren’t on the scene, telling them to ”Stay in Hollywood. We don’t want you here.”

Unmentioned by any of the news outlets that covered the event was a crucial fact: these weren’t actual “grassroots” activists, but rather astroturf out-of-towners bused in from counties all across the state. Their journey was paid for by the legitimately “well-funded” oil and gas industry, which raked in profits of $1 trillion in the past decade.

According to the Associated Press, the pro-fracking rally and march were organized by a brand new front group called the Landowner Advocates of New York formed in the immediate aftermath of the recent Cuomo decision to stall on opening the fracking floodgates.

The well-known industry front group, Energy in Depth (EID), announced the launch of the Landowner Advocates of New York in an Oct. 3 blog post, mere days after the Cuomo announcement. Lee (the same man who accused Cuomo of partaking in a “communist act” by extending the fracking moratorium) wrote about the rationale behind the group’s genesis – which he is the head of and which he registered the website for – in the EID post announcing the Landowner Advocates’ launch:

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