Assemblywoman Linda B. Rosenthal, Eric Goldstein from the Natural Resources Defense Council, former Commissioner of the NYC Dept. of Environmental Protection Albert F. Appleton, Deborah Goldberg from Earthjustice, and actor/activist Mark Ruffalo.

Last night, actor Mark Ruffalo was on hand at an Upper West Side public forum to voice his opposition to the proposal allowing  hydrofracking in New York State.

Assemblywoman Linda Rosenthal arranged the forum as a means for her UWS constituents, along with other New Yorkers, to discuss the New York State Department of Environmental Conservation's proposal to open the Marcellus Shale to natural gas drilling, which comes after the moratorium on the practice was lifted in June. The DEC has opened its Draft Supplemental Generic Environmental Impact Statement (SGEIS), which explores the controversy surrounding hydrofracking, to public comment through Dec. 12. 

Mr. Ruffalo arrived at the forum just ten minutes before its scheduled conclusion at 9 p.m., but questions, comments and general indignation at hydrofracking continued for 90 more minutes. Mr. Ruffalo, along with panelists and organizers, braved an antsy crowd as time to publicly comment ran out and one woman asked why there was no representative from the gas industry present.

After almost an hour of citizen questions and comments—including one representative for Manhattan Borough President Scott Stringer—a woman named Marsha walked purposefully to the microphone and said, softly defiant, "Since it was billed as an information forum, I’d like to know why there is no representative of the gas industry."

By then it was around 10 p.m. and most of the audience had left, but a soft mumble-grumble filled the hall at B'nai Jeshurun Synagogue on the Upper West Side where the forum was held. After the woman finished speaking—she had two more questions—Assemblywoman Rosenthal jumped right in, explaining the gas industry "does not need me to organize a forum for them."

The woman, who tried to respond to Ms. Rosenthal, was met with cries of "enough of this lady" and "next". (It should be noted that someone also said "let her talk, she's a voice!")

"Last night was about conveying the other side of the story about the potential dangers of fracking to our drinking water, our environment, our health and even our home values," Assemblywoman Rosenthal said in an email this morning. "These are direct repercussions of fracking that the industry has refused to acknowledge, let alone discuss."

Mr. Ruffalo also responded to the woman's comment, which included questions about the validity of the panel's claim that hydrofracking is environmentally un-friendly.

"They are not taking responsibility for what they should take responsibility for," Mr. Ruffalo asserted. "Until that day comes, you cannot have an honest debate with them because most of what they're saying is lies. And that's the truth."

The Observer caught up with Mr. Ruffalo after the forum ended around 10:30 p.m. and asked about the woman's comments.

"I didn't have a problem with it," Mr. Ruffalo said. "I think there's a lot of room in our democracy for that kind of conversation. And if you go down to Occupy Wall Street, you see that type of conversation happening everywhere. It's a conversation that a healthy democracy can handle."

During the forum, Mr. Ruffalo explained that since moving to upstate New York he has educated himself on the issue of fracking and become involved for the sake of his children and, well, America.

"It’s seeing how outrageous citizens of the United States are being treated," Mr. Ruffalo added to the Observer on his way out the door. "They’re not being taken care of."

Before Ruffalo arrived, the forum was mostly an information session. Panelists, including the Natural Resources Defense Council's Eric Goldstein, former Commissioner of the city's Dept. of Environmental Protection Albert Appleton, and Earthjustice's Deborah Goldberg, informed over 300-person group on the politics and dangers of hydrofracking.

Hydrofracking, also known as simply fracking or hydraulic fracking, is a controversial method of natural gas extraction. The process involves pumping a mixture of water, sand, and an unknown cocktail of 336 chemicals (or more in some cases) into the ground to fracture shale deposits some 5,000-20,000 feet below the surface, which releases the natural gas in the shale. Mr. Goldstein said that water quality, water quantity, air quality, land and habitat, public health and other resources may be jeopardized where fracking occurs.

"Folks can actually light the methane with a match in their faucet in the kitchen where methane gas has escaped from gas drilling activities," Mr. Goldstein said at the panel.

Panelists said that hyrdofracking can contaminate groundwater, which threatens to contaminate New York City's water source in upstate New York. The Halliburton Loophole, which amended the Energy Policy Act in 2005, exempts the hydrofracking liquid from the Clean Water Act, Safe Drinking Water Act, Clean Air Act and Superfund Act. While only a fraction of the fracking liquid, panelists affirmed the fluid is toxic and not "safe" as natural gas companies have said.

"The fracking fluid is actually poison," said Mr. Appleton. "If you drank it you would almost certainly die."

Other concerns addressed by the panel included fracking liquid disposal and the argument that opening up the state to hydrofracking would create jobs.

"Many of the jobs, as the SGEIS indicates, would intitially go to folks from out of state who are experienced," Mr. Goldstein explained. "You're not going to get some unemployed kid who lives up in Chemung County and put him to work in this drilling equipment."

A recording of the forum was filmed and will be submitted to the DEC as part of the public's comments. On Nov. 30, the DEC will also hold a public hearing at the Tribeca Performing Arts Center.

The state now stands to pay a previously estimated $250 million to Mr. Solow as a result of the opinion, which upheld an earlier decision that ruled the state had to award Mr. Solow the money he was entitled to under the old brownfield development program. That program, which was amended last year to close what were seen as gaping holes in the legislation, allowed developers to get unlimited benefits from the state when they were building on polluted sites (the awards were a proportion of the total development costs).

As part of his planned (but not progressing) $4 billion development on a former ConEd site by the United Nations Mr. Solow initially applied to be in the program back in the Pataki administration, a request granted by state officials at the time. But under the Spitzer administration, the DEC changed course and reversed its earlier decision to accept his ConEd site development. Mr. Solow then sued, demanding the $250 million award (the state's estimate) through the program. The state countered that Mr. Solow was not actually entitled to the large award as the land would have been remediated even without the incentive program, given its desirable, high-value location.

Last year, a state court ruled in favor of Mr. Solow, a decision the DEC appealed. That appeal ended Thursday, as the appellate court ordered the state to move forward with the brownfield cleanup agreement. 

ebrown@observer.com

Now, as “green design” cements its place in the lexicon, the Paterson administration is launching new requirements that would help thrust issues of greenhouse gases and climate change into the ever-contentious debate over large-scale real estate development in New York.

The state Department of Environmental Conservation, led by a former Upper East Side assemblyman, Pete Grannis, is moving to require landlords and others planning very large-scale developments to account for impacts on climate change. Two new DEC policies, when introduced, would have developers of certain projects estimate the level of greenhouse gases their developments would create, quantifying those emissions in a required environmental review.

“Our commissioner, Pete Grannis, and the governor, too, are really taking climate change seriously, and we’re trying to integrate climate change into everything we do,” said Anne Reynolds, director of the DEC’s policy office. “At a basic level, it’s to try to encourage project proponents and public agencies to think about these issues as they’re making these decisions, so that they have additional information.”

The agency hopes to formally institute the new policies and regulations, including dimensions, by the summer, Ms. Reynolds said.

The move seems to be a characteristic act for Mr. Grannis’ agency. He is a longtime environmental champion, and under his leadership, the DEC has developed a reputation among many in government as an agency with an activist-inspired approach to environmental policy, and one that favors far stronger regulation than in the past. His actions have earned high marks from environmentalists, but also have frustrated those who are being regulated.

The fueling theory behind the action is that transparency on greenhouse gases will bring the issue into public conversations and approvals, giving agencies and communities the ability both to see a project’s projected emissions, and to urge or demand that it become more efficient. The emissions estimates would be part of the exhaustive environmental impact statements that developers of large-scale projects are typically required to complete.

Those documents estimate a project’s impact on everything from shadows to traffic to socioeconomic conditions. While there are generally not limits on a project’s impact in the various categories, when a major adverse one is found, developers are often pushed to offer a carrot, such as improved public transit or affordable housing.

IN AND OF THEMSELVES, the new policies would not be very far-reaching. Should the DEC go forward with a regulation change to its “Environmental Assessment Form,” as it is planning, the new rules would only apply to the relatively few projects for which the DEC is the lead agency. But, as Ms. Reynolds said, other agencies throughout the state very frequently use regulations set by the DEC, readying the stage for carbon emissions to be considered in projects throughout New York.

Indeed, the Bloomberg administration, which has battled with Mr. Grannis’ DEC in the past on what it perceived as unnecessarily rigid regulation, seems to approve of the general concept. In response to a draft of the new policies this fall, Robert Kulikowski, director of the city’s Office of Environmental Coordination, wrote that the Bloomberg administration “applauds” the DEC for “acknowledging the importance of examining the potential impact of greenhouse gas emissions.”

But the city, which is looking at modifying its own environmental review guidelines, went further. On top of looking at a project’s effects on global warming, the city urged the converse: a look at global warming’s effects on a project. The state’s draft regulation changes called for this consideration on only select projects. Presumably this would provide warnings about the perils of development in low-lying areas, given rising sea levels—two weeks ago, the city’s Climate Change Adaptation Task Force reported that the ocean could rise between 12 and 23 inches by the end of the century.

Climate change’s potential impacts are “of particular importance in New York City since much critical infrastructure and new development are located at the waterfront,” Mr. Kulikowski wrote.

The DEC’s moves come as a bevy of climate-change-related rules and regulations for buildings, infrastructure and development loom. The city has a task force on “green codes” that seeks to recommend a series of changes to the building code and other construction regulations. And the Climate Change Adaptation Task Force is charged with crafting a plan to mitigate climate change’s impacts on infrastructure.

Much of this would likely mean more regulations, and given the real estate industry’s general aversion to additional rules, especially in this tougher economy, it’s easy to see that there would be some distaste among developers about disclosing greenhouse-gas emissions. Already, the environmental review process is seen as especially burdensome; for large projects, the final environmental impact document can be thousands of pages long. All of that work for a document that generally does not have teeth: It only requires developers to discuss ways to mitigate environmental impacts; it does not require them actually to carry them out.

“Basically, it’s always about disclosure, and not actually about mitigation,” said Hope Cohen, a scholar at the right-leaning Manhattan Institute. “My view is, the more you pile on things you have to disclose, and yet not require any mitigation, only disclosure, the more burdensome and silly everything is.”

Still, backers of the DEC measure say the amount of extra work required to account for climate change would be marginal, and it would follow the lead of a few other states that have begun to install similar regulations.

“If you’re already doing an EIS, a greenhouse gas analysis should only be a small amount of additional work,” said Michael Gerrard, an environmental attorney and the new director of the Center for Climate Change Law at Columbia University.

ebrown@observer.com

That's State Senator Liz Krueger, vice chair, and State Senator Carl Kruger, chair, sitting next to Assemblyman Herman "Denny" Farrell, the longtime chair of the Assembly Ways & Means Committee.

Senate Democrats insist they are ready to hit the ground running on budget issues, even though the committee currently has no secretary.

Krueger told me yesterday that it's been particularly hectic running from meeting to meeting, getting ready to deal with the coming budget with less than a week's notice.

Today's hearing focuses on environmental conservation, with Department Commissioner Alexander "Pete" Grannis first on the docket.

But Mr. Solow is now engaged in a legal battle with state government that suggests a distinct lack of frivolity both in its scope (he is eligible for perhaps over $250 million in state funds) and the strength of his arguments (a state court recently ruled in his favor, though the decision is now being appealed).

The dispute centers around Mr. Solow’s prized development parcel, a 9.2-acre former Con Edison site just south of the United Nations, and its eligibility for a state brownfields development incentive. After initially telling Mr. Solow his development firm was qualified to enter the brownfields incentive program, the state’s Department of Environmental Conservation in the Spitzer administration changed course and ruled the site ineligible, in part because it said the development would have happened with or without the credits.

Mr. Solow then sued the DEC, and in October, a New York Supreme Court justice decided in his favor, ruling Mr. Solow should qualify for substantial assistance in the form of tax credits. The case is one of a series of high-profile developments around the state where the DEC has sought to block entry to the brownfields program, only to be reversed by state judges. For the Solow case and at least two others, the DEC is appealing the court decisions; losses at the appellate level would likely mean that the state would have to pay out hundreds of millions of dollars during a strained fiscal time.

The success of the lawsuit thus far—and the potential to receive a corresponding nine-figure tax credit through the brownfields program—represents a bright spot for Mr. Solow at what appears to be a time of rough going.

Citibank last month filed a lawsuit against him, claiming he was in default on $85 million in loans tied to the site. According to the suit, a $490 million loan with the bank required Mr. Solow to keep annual cash flow in 2007 at no less than $50 million as of March 31, 2008, but documents Mr. Solow submitted to Citibank showed cash flow of just $11.6 million. He also was required to have “unencumbered liquid assets” of at least $50 million, though he had only about $12 million available, according to Citi. 

A source close to Mr. Solow said the developer believes the claim is not valid, as Citibank mismanaged his collateral.

Mr. Solow is also entwined in the case of Marc Dreier, the lawyer accused of bilking hundreds of millions from hedge fund managers. According to court papers, Mr. Dreier and his associate Kosta Kovachev posed to hedge fund managers as representatives for a real estate developer in New York—reported to be Mr. Solow—using his offices to commit the fraud.

More broadly, the financial crisis and sealed-tight credit markets are surely affecting Mr. Solow’s plans to build on the East River site, where he wants to put a $4 billion development of housing and office space. The development won a hard-fought zoning approval last March, though the community and local elected officials have heard little about the status of the project as the sprawling site has sat dormant—no building permits have been filed since early 2008. A spokesman for Mr. Solow said the developer is committed to developing the property “at the appropriate time, consistent with the plans approved by the City Council.”

A QUICK START on construction, of course, would defy the recent history of the site. In early 2000, Mr. Solow, in a partnership with the Fisher real estate family, was announced the winning bidder for the site, a former power plant. Financial partners changed, and the cleanup proceeded gradually (Mr. Solow’s lawyers say it cost about $100 million), and it wasn’t until 2007 that he began the city’s seven-month rezoning approval process.

At least for the past few years, Mr. Solow intended to get credits through the state’s Brownfield Cleanup Program, which gives developers who build on contaminated sites tax credits for both a set portion of their cleanup costs and a set portion of the total costs of the development. The program, first passed into law in 2003, had no cap on the benefits to developers, thereby allowing multibillion-dollar developments to potentially qualify for payouts of hundreds of millions of dollars in state funds. (The State Legislature revised the program last year, installing a cap of $35 million in benefits, but Mr. Solow would be grandfathered into the old rules.)

Mr. Solow indeed stands to gain substantially, as the DEC has estimated he would qualify for at least $250 million, based on his filings, if he emerges victorious from the legal battles, according to a DEC official.

The DEC, which said during the Pataki administration that Mr. Solow’s development would qualify for the program, has contended during the Spitzer and Paterson administrations that development on the site, one of the largest undeveloped tracts of private land in Manhattan, would have happened without the incentives.

“Remediation was substantially complete, it was fully required by other binding obligations, and the redevelopment was moving forward irrespective of the BCP,” the DEC said in court papers. A DEC spokesman declined to comment further due to the ongoing litigation.

But Mr. Solow’s lawyers said that the DEC was adding a new provision not in the law, claiming the site was eligible for the program regardless of whether development would have occurred.

In October, Justice Lewis Bart Stone agreed, ruling the DEC’s rejection of the development was “in violation of law by adding a condition not found in or authorized by the statute.”

The Solow case comes as the state is appealing similar rulings for a mixed-use project near Rochester and for a planned mega-mall–resort near Syracuse, DestiNY USA, where developer Pyramid Companies plans a development of between $2 billion and $6 billion.

David Freeman, an attorney with Paul Hastings who co-chairs a New York State Bar Association committee dealing with environmental policy and who said he is not involved in these developments, said the DEC “has the weaker of the arguments” in the appeal.

“The issue is, in DEC’s mind, whether these projects would have been done anyway,” he said, “but that’s not a standard that’s actually in the legislation, that’s a standard cooked up by DEC.”

An attorney for Mr. Solow, Daniel Riesel, was more blunt about the developer’s prospects.

“I don’t believe the state has a snowball’s chance in hell because they really tried to change the plain language of the statute,” he said.

For now, though, the site goes without construction, a point that has frustrated community members and elected officials.

“We were looking for open public space, but not in the form of giant craters,” Councilman Dan Garodnick said via e-mail.

ebrown@observer.com