The New York Farm Bureau, in surely the most unintentionally humorous amicus curie ever filed on behalf of fracking, has argued that farmers should be able to “harvest” gas – as if it were corn. This is the premise of their brief in support of gutting local land use controls – Home Rule: That the supposed right to “harvest” gas is legally analogous to “right to farm” laws and somehow magically trumps local land use ordinances. Apart from being a rather silly misuse of the word “harvest” it is grossly misleading to farmers and is unlikely to persuade any appellate judges:
“The economic and environmental impact of high-volume hydraulic fracturing (“HVHF”) to harvest shale gas will be deeply felt by farm families and businesses.”
“To harvest” of course refers to gathering in crops when ripe. That is not how drilling for oil or gas actually works, but this simple distinction seems to be lost on the New York Farm Bureau. Their confusion on what gas drilling really amounts to may explain why landmen were able to take advantage of so many local farmers. They then contend that the “harvesting” of gas is necessary for some farm operations to survive, presumably by “harvesting” gas along with the beets and carrots:
“Without gas leases and royalties from subsurface natural gas, many farms cannot thrive or even survive. “
Prospecting for gas on a property does not really enhance or improve farm operations. Just the contrary – fracking shale pretty much tears up the place. To pretend otherwise is shilling for shale – not promoting farming. (The Farm Bureau seems to be oblivious to the difference). It does not take an MBA from Wharton to know that the viability of a farming operation has less to do with how much gas is “harvested” on a farm than with how many crops are harvested, milk produced, cattle raised, etc. That, in fact, the “harvesting” of gas will interfere with normal farming operations, via increased non-farm truck traffic, spills, the pollution of groundwater, etc. I have farmed and I have drilled for gas, and they have precious little to do with one another, much less be construed to be complimentary activities on the same property.
What happens is that drilling companies explore for gas as a non renewable hydrocarbon. They don’t “harvest” it. (Would the Farm Bureau be willing to retract and stipulate to that ?) Relatively few farmers benefit from such prospecting. Such explorations are fraught with financial, environmental and operational risks to the participants, who sometimes lose their shirts – after rendering their houses un-insurable and un-mortgageable. Because they don’t find any gas “to harvest”. Or they start “to harvest” it, put a lien on the mineral rights and then the floor drops out of the price of gas. And while they were out there harvesting in the ripe gas plants, they gassed the groundwater for a mile around. Which is what comprehensive land use plans are designed to do: Protect the town from people that think that gas is “harvested.”
Note that the New York Farm Bureau has also argued in writing to the legislature that mineral rights “in the ground” are worthless for tax appraisal purposes. Meaning there is nothing of value “to harvest” unless a gas prospector hits a producing well. And since neither plaintiff actually had a permit to drill a well, neither of them lost anything – per the Farm Bureau’s own reasoning. Their argument that mineral rights are worthless is conspicuously absent from their amicus. This is a perverse argument for the separation of powers – the Farm Bureau can tell the legislative branch that “unharvested” gas is worthless, while arguing the worth of “unharvested” gas to the judicial branch. Clever, eh ?
Ownership of the mineral rights does not always go with the land; mineral rights are very often severed from surface rights, a phenomena known as the “split estate”. Once severed, the surface rights owner and user – the farmer and their farming operations – have no ownership in the mineral rights, and therefore no upside whatsoever in playing shale gas roulette on the farm. Only the risk remains. Once the mineral rights are severed from the surface rights, the Farm Bureau’s “harvesting gas” trope falls completely apart. Likewise it falls apart for tenant farmers who own neither the mineral rights nor the land. No “gas harvest” for them. They just get fracked.
Likewise, mineral rights owner can, absent local land use controls, not only put the surface rights owner in fracking harm’s way, but they can put the neighbors in harm’s way via the privatized eminent domain of compulsory integration. What gets harvested in compulsory integration is you. If you are an organic farmer (of whom the amicus is oddly silent) you are totally fracked, or to be more precise, per the USDA, you lose your organic certification. Congrats. But the Farm Bureau is also AWOL on the very real threat of compulsory integration to adjacent property rights. This is how Compulsory Integration would apply to the harvesting of other crops:
If the Farm Bureau likes the fracking method of harvesting so much, they will certainly enjoy Compulsory Integration of surface crops just as it applies to oil and gas. Farmer Brown with 24 acres of corn adjoining Farmers Jones 16 acres of corn applies for a 40 acre integrated corn spacing unit which allows Farmer Brown to harvest the whole 40 acres and pay Farmer Jones only 12.5% of the value of Farmer Jones 16 acres of corn. Just like what Farmer Brown can do with any gas below the surface under Compulsory Integration.
The Farm Bureau is not acting on behalf of farming per se, but on fracking unequivocally. As if it were simply paving the way for the landmen. Which we thought Energy in Depth and “Mushrooms” Moreau and “Frackin” Tom West were paid to do (?) Or fracking lawyers that try to get farmers to clusterfrack themselves with napalm. Where is the amicus from the napalm clusterfrackers ?
Absent local land use controls, the driller could prospect for gas without meaningful constraints. They can do so in New York under archaic regulations that were infamously rewritten by Chesapeake’s lobbyist. And that woud be enforced by an “environmental” agency that is not even autonomous from the industry it regulates. By the only state that derives no direct benefit from gas production. Guess what. That dog won’t hunt.
There is no right to pollute. There is no right to poison your neighbor’s well. What’s at stake is the town’s right and obligation to protect is citizens and water supplies from the predations of shale gas industrialization. With or without the collaboration of the “farm bureau.”
The Farm Bureau claims that the DEC’s regulations are sufficient safeguards, when even the DEC acknowledges the importance of local comprehensive land plans and local land use ordinances. The DEC does not protect any roads. It cannot protect individual houses, schools or drinking supplies. It never has. The whole promise of the Farm Bureau’s “harvest gas” fairy tale is that the DEC can not only do it all – but that the towns can do nothing. Which even the DEC would not want – because they know they cannot protect every building and every water source – or any roads. That’s what towns do. The DEC regulates how wells are drilled. Towns regulate where they are drilled – and where they may not be drilled. In New York as it is in Texas – where we still drill for gas in accordance with local land use laws. We don’t think we can harvest it – without proper deference to local laws.
If your town board has not passed a road and land use ordinance to address shale gas industrialization, get some new politicians at the first available opportunity. Vote early and often.
The picture is an un-retouched photo of pumpjacks harvesting oil at the Annual Oil Harvest . Oil is a perennial, not to be confused with shale gas, which must be replanted every spring. Ask the New York Farm Bureau for details.