Questions posed to a town board by a resident. Answers and comments in bold mine. Answers in quotes from a gas industry front group, Energy in Depth.
QUESTION 1: How are the Oxford Town and Village Boards going to respond to Albany’s delegation of responsibility to pass and enforce land use and zoning regulations for hydraulic fracturing?
The state does not do local land use planning. The state controls how a well is drilled, not where it is drilled as a permitted land use. That is the town’s responsibility under its land use ordinances. Both the Middlefield and Dryden decision were clear on this.
That’s the law in other states – even Fracksylvania – gas wells are a land use, so land use laws apply to gas wells
Likewise, the state has no authority over local road use ordinances.
“EID ANSWER: There is absolutely no delegation of responsibility to municipalities to enact land use and zoning regulations with respect to hydraulic fracturing.”
The state does not “delegate authority” for land use ordinances. It is a town’s right to enact such ordinances under the state constitution.
“EID: The DEC has floated rumors, and the SGEIS suggests, the department will consider community opinions regarding natural gas development before it issues permits, but hydraulic fracturing is an operational process that falls squarely within the preemption statute (ECL 23-0303), which states : The provisions of [the Oil, Gas and Solution Mining Law] shall supersede all local laws or ordinances relating to the regulation of the oil, gas, and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”
The DEC acknowledges local land use laws – if there are any. The meaning of the statute is clear – the towns did “regulate the gas industry” – they precluded such industries. None of the town ordinances relate to how gas wells are drilled or operated. They prohibit such activities as a land use, in accordance with a land use ordinance.
“EID: Even the judge in the Dryden case, whose decision was very flawed, said “[the statute] does not expressly preempt local regulation of land use, but only regulations dealing with operations.” If hydraulic fracturing isn’t “operations” then what is? The town has zero authority over that process and calling it land use won’t make it so. “
The fact that a gas well is a land use means that it is subject to land use laws.The town did not seek to regulate how gas wells are operated. The town prohibited gas wells entirely. A gas well is an industrial land use. Land use ordinances apply to all land use activities, including gas wells.
“EID: Moreover, the one piece of case law in New York that actually addresses the oil and gas preemption issue, the Erie County Envirogas case, found for industry and against the town saying the state preempts “any municipal law which purports to regulate gas and oil well drilling operations.”
Both Dryden and Middlefield considered all the relevant case law. The state regulates how wells are drilled and operated. The town regulates where. Meaning the town has an obligation to deal with whether or not gas wells will be permitted – and where they will be permitted.
QUESTION 2: How are the boards going to respond effectively before the DEC issues its report?
Towns that do not have road use ordinances in place before permits are issued risk having their roads ruined. Towns that do not have land use ordinances in place will not be able to control where gas wells are drilled (or not drilled) in town. The DEC has a history of deferring to local land use ordinances – provided such ordinances are in place.
“EID ANSWER: There is no need to respond because nothing in the New York State DEC’sSupplemental Generic Environmental Impact Statement (SGEIS) relating to hydraulic fracturing will change the legal position of towns or villages with respect to its rights, whatever they may be.”
The issuance of the final SGEIS will not change the town’s rights and obligations to enact road and land use ordinances to protect its existing land uses, roads and water supplies.
“EID: Local government clearly has the right to address road issues and can do so before DEC acts or later.”
If a road or land use ordinance is not in place prior to the issuance of a drilling permit, the ordinance may not be enforceable on that permitted well.
“EID No DEC permits will be issued prior to soliciting municipal input anyway (see §18.104.22.168), so there is no threat a community will be confronted with a permitted nonconforming use that would somehow be protected from municipal regulation by the existence of a legally valid state permit.”
The DEC does indeed respect local land use ordinances – where they exist. There is no precedent to respect the town’s “wishes” if the town has no land use ordinance in place.
“EID Regardless, all of this assumes a local government can prohibit an activity it is preempted from regulating by pretending a prohibition isn’t a regulation, a conclusion that is still very much in doubt and in the courts. It is not prudent for a town or village to attempt to jump the gun and regulate before the DEC has firmly established what it regulates and the courts have resolved these preemption issues. This is only an invitation to legal challenges from landowners.”
Threatening litigation to prevent towns from protecting themselves with land use ordinances has not proven to be much of a deterrent. There are no grounds for such (threatened) litigation against a moratorium.
Neither the Middlefield nor the Dryden plaintiff have even bothered to appeal the court ruling. If they thought they were going to win, they would already appealed the rulings. The frackers do not think they are going to win on appeal – so they have not filed. The frackers send front groups like EID to talk about the lawsuits as if they have been appealed – when they have not.
QUESTION 3: Do any board members, their families, or business associates hold gas drilling leases or otherwise stand to benefit from any board action or inaction on this issue?
Board members have a fiduciary responsibility to protect the town’s roads, built environment and water supplies – regardless of their personal interests in the issue at hand.
QUESTION 4: When can the boards compile a complete map of the properties leased to corporations for gas drilling, the owners, corporations, and the permits submitted?
The board should disclose their own holdings and activities in this regard. Unfortunately, drillers routinely do not record their leasehold interests.
QUESTION 5: What adjacent properties will be affected by Albany’s compulsory integration of the lease holder’s neighbors’ land into his contract and gas drilling husiness?
New York has the worst compulsory integration practices in the US, written by Chesapeake’s lobbyist.
“EID ANSWER: No landowner can be forced by compulsory integration regulations to enter into a gas lease.”
Compelling an owner into a gas well spacing unit is exactly what New York’s compulsory pooling law can do and has done. EID is one of Chesapeake’s PR fronts, so they simply lied about this. Many home owners in New York are vulnerable to being pushed into a gas well until Compulsory Integration is amended or repealed.
QUESTION 6: What natural aquifers, private and village wells, rivers, smaller waterways, and ponds exist on the acreage leased for horizontal drilling or projected for pipelines?
This should be addressed in a comprehensive land use plan irrespective of existing ownership or leaseholds, since that is the most effective way for a town to deal with the issues.
“EID ANSWER: This, of course, cannot be known with specifying which leases and plotting them. However, almost no property of any consequence would not have one or more of these, so the question is largely irrelevant. What is relevant is the setbacks and other protections that exist with respect to each of these. These are thoroughly addressed in the SGEIS and specifically at§7.1.10 and §7.1.11. These include separations from aquifers (at least 1,000 feet below), setbacks from streams and setbacks from supplies.”
Protections in New York are based on political science – vote counting – not science.
The regulatory set backs of a gas well in New York from houses, schools, and water wells are the worst in the United States. The set back of a gas well from a house in New York is 100 feet: GEIS Chapter 17 A.1.B.1.b
New York’s set backs virtually guarantee that water wells will be gassed and home owners will be unable to get a mortgage.
QUESTION 7: What roads, highways and bridges and service stations will be used by the hundreds of heavy trucks that will service each well in this area?
Absent a road use ordinance, frack truck convoys can use any road or bridge, where they are otherwise lawfully allowed. The town and county can regulate what roads frack trucks use via a road use ordinance.
QUESTION 8: What businesses, farms and private homes will be impacted by drilling: increased traffic; noise; air, soil and water pollution; and damage or injuries from accidents?
The impacts of drilling can be addressed in a road ordinance, land use ordinance, and if drilling is allowed by zone, noise ordinances. Absent such ordinances – any house, business etc. can be negatively impacted.
” EID ANSWER: This is still another rhetorical question designed to offer an opinion rather than gather information. However, the record is clear. Hydraulic fracturing has never polluted a water supply. The same holds true with respect to air pollution and other issues raised. The SGEIS addresses all of these in detail. There is no need to reinvent investigations DEC has already conducted.”
The question was about drilling – not just “hydraulic fracturing”. All the industrial processes, starting with the frack truck convoys, negatively impacts road, land uses and water resources.
Shale gas wells are excellent ways to pollute groundwater. Air pollution from shale gas industrialization has been documented in several states. The DEC has no regulations for noise levels, no road use authority and no land use authority. All those are the town’s responsibility. As a practical matter, the DEC cannot and will not be able to protect water supplies on a local level – only the town can do that.
QUESTION 9: What additional judicial and legal services will be needed for property and personal conflicts and lawsuits among neighbors, leaseholder’s and corporations?
Gas drilling falls under the same legal and judicial authority as with any land use – in accordance with local zoning codes.
QUESTION 10: What skills and resources will tbe town assessor need to determine the tax rate on each well and monitor reporting, given the widespread fraud in the industry?
As a practical matter, local tax assessors may find the ad valorem valuation of shale gas wells very challenging. New York’s valuation method for gas wells is antiquated and no multiplier has been proposed for shale gas wells.
All gas production is self-reported by the operator. Since New York is one of the few states without a state production tax on oil or gas production, there will be little well monitoring from the state.
Wells are valued for property tax purposes on their productive value, which has be overstated by gas promoters.
New York State Oil, Gas and Mineral Resources 2009
The DEC’s Annual Report shows that New York State’s 10,029 active oil and gas wells produced around $6.2 million in revenues for local governments –that is less than $600 per well (See page 9.)
QUESTION 11: What new personnel, equipment, training and supplies will be required for local fire, emergency medical, traffic and environmental control and police services?
Few local volunteer fire departments are equipped to deal with a gas well or gas compressor station fire.
QUESTION 12: What additional personnel, equipment, training and supplies will be required for town and village highway, water, waste management and other departments?
If the town has a good road use ordinance, it may have the resources to at least partially offset additional road costs. There are no funds for state highway repair, nor has any funding source been proposed.
QUESTION 13: What will be the impact on local air, water, and soil quality and how will they be monitored, pollution prevented and violations publicized and remedied?
Water supplies can be impacted severely = since horizontal wells are prone to vent gas into groundwater. The only sure way to prevent groundwater contamination is via a prohibition of such wells.
Energy in Depth made a fracking mockumentary about a woman with gas wells in Pennsylvania who went on a quest to learn the “truth about fracking” when her own gas wells leaked. . . which she didn’t bother to disclose.
Air quality can be severely impacted by shale gas industrialization. Again, the only sure cure is prevention of the activity.
QUESTION 14: What plans are needed for emergency evacuations of neighborhoods, schools, highways and public facilities in the event of a fire, explosion or chemical leak?
A gas well incident near housing, etc. could swamp local authorities ability to respond.
QUESTION 15: If private security forces are employed by drilling companies how will they coordinate with the powers and jurisdictions of local police?
All activities – particularly trucking, are under local jurisdiction.
QUESTION 16: How will safety, fire and medical emergency crews gain access to fenced and locked or abandoned facilities or those with disputed or foreign ownership?
Access in the event of fire should be available regardless.
QUESTION 17: What additional lawyers, tax enforcement and collection agents will be required for absentee owners or American corporations selling leases to foreign entities?
Many gas prospectors in New York are controlled by foreign corporations, or in the case of Chesapeake are negotiating to sell ownership to foreign entities. This may impact where the gas is shipped – overseas. It should not impact local law enforcement
QUESTION 18: What additional local employees, supplies and equipment will be needed for this expanded range of government services? Property or sales tax increases?
Real property taxes may actually go down – and demands for public services could go up.
QUESTION 19: What will be the economic impacts from the influx of temporary workers, more crime, increased school enrollment and demand for additional community services?
Initially, all of the crews will be transient – staying in transient housing. Crews do typically travel with their families.
QUESTION 20: What will be the effects on property values from homeowner flight because of the changcs causcd by major industrialization of a traditionally rural area?
Housing values will go down as a function of proximity to drilling and trucking activities. No one chooses to live in a gas field.
The responsible thing for a town to do is enact a road use ordinance and, if it has not updated its land use ordinance, a moratorium. The DEC cannot possibly protect each town’s roads, housing stock or water supplies.