History is written by the winners, but history is made by the doers. So with that in mind, here’s my take on how the town ban movement started in New York, as told by the winners, those relatively few men and women that were instrumental in actually making it happen, first as a legal strategy and then as a political accomplishment – one town at a time.
The history to date of the Middlefield and Dryden defenses of Home Rule has been chronicled in legal journals, such as Charles Gottlieb’s piece, here. And in the findings of the courts themselves, as summarized in the appellate court’s ruling in Dryden. What has not been adequately chronicled is how those town bans – that have been so valiantly defended – came to be enacted in the first place. Let’s first review some of the conventional wisdom:
1. Ban towns were less heavily leased than “frack us” towns. There is a correlation, as the ban map indicates, but the Town of Dryden, one of the first towns to ban, was very heavily leased by Anschutz Exploration, which sued the town over the ban. Middlefield was also leased up. The leasing – and the seismic testing – precipitated the bans.
2. Ban towns have higher population densities. No doubt, most upstate cities – Binghamton, Oneonta, Buffalo, Syracuse, Rochester – have passed bans. But there are banless exceptions – Norwich and Corning.
3. Ban/ No Ban is a Blue/Red political phenomena. Partially true as this map indicates. But the first ban town, Otsego was, at the time a nominally Republican town. And the Town of Milford, Senator Seward’s town, is also more red than blue. Nationwide, Red States, such as Texas, are staunchly pro Home Rule, and a town ban is a classic legal manifestation of Home Rule.
4. Money. None of the rural ban towns had any money to speak of. They knew this was a David v Goliath horror show from the outset. The political organizing was all done by locals – amateurs. The Shale Shows were done by volunteers. The towns that got sued recruited allies, but none had the resources the frackers had. Money was not a major variable. The only thing the ban towns had going for them were competent local “fractavists” with intestinal fortitude. And the law.
Which begs the question: Why does one town pass a ban when its neighboring town does not ? The variable that differentiates a ban town from a non-ban town is that every ban came about through the singular initiative of a few local citizens. If a town lacks effective anti-fracking leadership – including people that are willing to run for office and win – then a ban is unlikely, since initiating and adopting a ban takes resourcefulness and and political acumen.
The common denominator in ban towns is effective political leadership. Generally this involves a handful of individuals – typical lay persons, not politicians, who act on their own volition with the help of circuit-riding municipal attorneys, like Doug Zamelis, and John Lyons, and some hard working land use planners – like Nan Stolzenburg and Ted Fink – who craft the comprehensive plans that good land use ordinances are based on.
In most cases, only a handful of people made the effort to initiate these ban. And for some reason that I have never quite fathomed, they were, more often than not, women. Courageous women. Hard working women. Clever women. So here’s to them.
The Threat of Shale Gas Industrialization
The threat of shale gas industrialization was clearly apparent in New York by 2008 – as evidenced by the de facto moratorium put in place by the state, in the absence of updated environmental guidelines (GEIS) to apply to HVHF wells. The initial town and county actions – expressions of concern and bans on drilling on county property, such as Sullivan Counting banning drilling on county lands on July 25, 2010, were largely ministerial, and in the case of the resolutions, without legal substance. But these initial actions helped spawn the town ban movement. At the time, to be charitable, the initial efforts of activists was a bit tepid – “Test your water before you get fracked.” “Petition the DEC to behave.” To be uncharitable, there were a lot of headless chickens running around not knowing what to do. From that chaos emerged the leaders of the town bans. Without effective protections from the state, they were going to make the effort to prohibit fracking in their town.
The Legal Strategists
The first widely circulated online paper that addressed how a town could use its land use ordinances (zoning) to prohibit shale gas industrialization was published by Todd Mathes in March 2009 when he was a municipal attorney at Whiteman Osterman and Hanna, an Albany law firm. Simply put, Mathes’s interpretation of the relevant statutes and case law was that a properly enacted land use law, based on a comprehensive land use ordinance, could be applied to oil and gas drilling, as a heavy industrial use, because state law did not specifically pre-empt land use ordinances. As Mr. Mathes put it succinctly :
A plain-meaning interpretation . . . may support the argument that New York municipalities may regulate the industry outside of the scope of the State’s regulatory program.
Meaning towns could limit the activity under their zoning laws, they just could not regulate the activity itself within the town. Land use laws apply to gas wells in most other states. (See comment on the Town of Virgil below). Mathes said they would apply in New York. He was prescient and he was right.
In January 2010, Michael Kenneally of the New York Association of Towns published a paper with Mathes that referred to the issue from a Home Rule perspective – the right of a town to protect itself. The Association of Towns were later to write a key amicus in the Dryden case.
Inspired by that paper, towns began to look into banning fracking and hired land planners and attorneys to write legal opinions on the subject. John Lyons wrote a legal opinion for the Town of Middlefield in January, 2011 laying out the case law that indicated a ban could be upheld by the courts. Middlefield became one of the first towns to act on a ban and was the second town sued by the gas industry.
Attorneys Helen and David Slottje took this a step further and explained why land use laws could be used to prohibit shale gas industrialization completely – effectively banning it from a town. Since, as they explained, state law addressed the regulation of how wells were drilled, but if that activity was banned in a town under a lawfully enacted zoning law, the activity would not exist in the town. How the activity was regulated by the state would be moot within the town. Helen and David Slottje were the first attorneys to widely popularize the notion that a town could “ban fracking.”
Getting the Word Out
Helen Slotte presented a Power Point at the first statewide conference on Home Rule at the Otesaga Hotel in Cooperstown, on April 9th, 2011. Also presenting at the Otesaga conference was land planner Nan Stolzenburg, who was already working with several early adopters of town bans, namely Middlefield, Springfield, and Cherry Valley, to update their town land use plans, and with attorney John Lyons, draft their ordinances. The key role of the land planner is often overlooked in these town bans. Absent a good land use plan, a town land use ordinance could be indefensible. Ironically, in picking the Town of Middlefield to challenge, the gas lobby picked a difficult ordinance to challenge – Middlefield was the first town in Otsego County to adopt a zoning ordinance (in the Bicentennial Year of 1976) and Ms. Stolzenburg had just finished the land use plan, plus the town’s legal counsel, John Lyons had recently updated its land use ordinance.
Michelle Kennedy, a Cooperstown attorney, explained how zoning applies to gas wells at the Otesaga forum – and wrote a paper about it for the Fordham Law Review. A civil engineer from Laberge outlined how road use ordinances could be use to address shale gas impacts.
Panelists at the Otesaga Home Rule forum explained how to organize a ban initiative: Julie Huntsman, who organized the Town of Otsego, and Peg Leon, who helped organize the Town of Middlefield, explained how to petition local residents and mobilize opposition to fracking. Julie made a Power Point explaining how to organize a town, here. The movement’s videographer, Cris McConkey, filmed the Otesaga Home Rule Forum, here.
Shortly after the Otesaga Forum, and based on the legal work of Todd Mathes, Michael Kenneally and John Lyons, Otsego County towns adopted bans in quick succession:
Cherry Valley: July 14, 2011
Soon followed by Tompkins County towns – such as Dryden, which was heavily leased, and banned on 8/2/11, organized by Marie McCrae and Hillary Lambert based on Michael Dineen’s work in Ulysses, and the Slottjes.
One Woman Takes the Initiative to Enact the First Town Ban
Success may have many parents, and failure may be an orphan, but in the case of the first town ban ordinance, there was really just one parent: Julie Huntsman. Since, absent her initiative and resourcefulness, the Town of Otsego would probably not have been the first town to ban. And like its immediate neighboring towns, such as the Towns of Hartwick, Exeter, and Richfield Springs – none of which have adopted bans – it might not have any ban at all.
After the legal papers had been published and the Power Point presentations had been made, virtually every town in Upstate New York had access to the same information that the Town of Otsego had. What separates the ban towns – each one of them – was the effectiveness of local fractavists. That is the key to whether or not there is a ban. It may take a village to raise a child, but it takes at least one “julie” to have a ban.
What Mrs. Huntsman did was organize. She is a vet by training – not a politician nor a lawyer nor a environmental activist. Nor, for that matter, a blogger. She organized presentations in the town, where Lou Allstadt, Ron Bishop, and I spoke. We could explain the hazards of fracking, but we were clueless about how to respond politically – until Michelle Kennedy suggested a ban at a presentation I made at Templeton Hall in September, 2010. Then, in Julie’s own words, she got to work building political support for a ban:
“In mid February, 2011 the Town Supervisor announced that the TB was hosting a special town hall meeting on gas drilling March 4 so that the community could be heard, and it was properly advertised. She encouraged the few pro’s that she knew to get their people there so there would be no justified excuses from them. That meeting was the motivation for the phone survey, because I knew we needed something that would leave absolutely no doubt in those board members minds that Town of Otsego did not want this mess. Asked some of the previous name gatherers to help and recruited new people too. Called up Simon Thorpe of Ommegang and he committed five or six staff members to help. Gave everybody the script and they had like 8 days to do it.
So in 8 or 9 days every registered in the town of Otsego voter got called. A lot were out of town for winter break, lots of wrong numbers, but 1159 people were actually spoken to. 945 (81.5%) concerned/opposed (almost every volunteer pollster said nearly all their respondents indicated adamant opposition). Off the top of my head I don’t recall the “drill baby drill ” number, but it amounted to 4.5%; 14% undecided or refused to give a response. So at that March 4 special meeting I was able to deliver those results to the town board. In the mean time petition cards (previously mailed) with comments were still coming in…that effort ultimately netted another 700 names, for 1400 total.Got pushback from a lone pro-fracker on the planning board during the town’s April meeting, saying the pro-drilling side had not been heard. The Town Super (Meg Kiernan) reminded him of the March meeting and the fact the town board had not had an “anti-drilling” presentation ever; that (the opposition) came forth during public comment period, and independent community groups were free to organize their own meeting, which the anti-frackers (JH) had done. Ended up inviting him and one other pro guy to speak to the town’s Natural Gas Advisory Committee when they met in May. When I got wind of that I told the committee chair, Atwell, that Kelly (Branigan) and I were on the County NGAC and would have just returned from the county’s PA trip April 27; we would like to offer our perspectives then, as well. She agreed.So Kelly (Branigan) and I spoke to the town’s Natural Gas Advisory Committee, turned in the results of the surveys and petitions and on May 11, 2011 the amendment passed.”
The Town of Otsego’s “ban” was an amendment to their land use law drafted in large part by a retired Virginia state judge, Lang Keith, who later became a town alderman, as did Julie Huntsman. Bans are political acts, and it takes politicians to adopt them. Lack of political power is not conducive to getting a town ban.
Other Early Banners
Local heroes were at work in Middlefield (6/14/11) where Sarah White, Peg Leon, Kim Jastremski, Elizabeth Murphy, and Kelly Branigan and others lead the petition drive for a ban and attorney John Lyons prepared a memo for Middlefield dated January 6, 2011. Lyons, working with land planner Nan Stolzenburg, drafted the land plans and the land use ordinances for Middlefield, Springfield and Cherry Valley. See, for instance, his memo to the Town of Middlefield, here, from January 6, 2011. Here’s Cat Gareth’s account of how Middlefield fought back:
“Many of the resulting (gas) leases were eventually transferred to Gastem USA, a Canadian gas exploration firm. By the fall of 2010, Gastem was surveying and conducting seismic testing just outside Cooperstown, sending shock waves literally and figuratively through the local community.”
Three Middlefield residents – Kim Jastremski, Elizabeth Murphy and Sarah White – all mothers of young children and alarmed at the sudden prospect of heavy industry adjacent to their rural homes, founded a group they called Middlefield Neighbors (MFN).
“We decided that the most important thing we could do to help our community was to inform the rest of our neighbors about the situation,” Kim Jastremski said.
Middlefield Neighbors created a pamphlet about the proposed shale gas drilling. They distributed it door-to-door, meeting many of their neighbors for the first time and gathering email addresses for an MFN listserve. MFN organized an informational program at Milford Central School, featuring local experts who discussed fracking’s impacts and possible ways to mitigate or safeguard against them. The growing Middlefield Neighbors group also held planning meetings and attended Middlefield Town Board meetings to bring their concerns to the attention of the Board.
An important volunteer effort by MFN, spear-headed by writer Peggy Leon, was funding and conducting surveys by phone and mail of town voters and of resident and non-resident property owners. 85% of respondents in both groups were opposed to gas drilling in Middlefield. Between 7-9% were in favor, the remainder undecided. These results demonstrated overwhelming support for the actions the Town Board subsequently took to strengthen the Town’s prohibition against heavy industries such as natural gas production.”
Springfield banned (6/13/11) where Harry Levine organized the opposition. Here’s Harry’s characteristically self-effacing account:
“The Springfield local law was adopted at the initiative of our Town Board and its Supervisor, Bill Elsey. He was looking at the action being taken by Cherry Valley and wanted to adopt a similar ban. But without zoning, the town took a different approach based upon its police powers. Advocates for Springfield sent out a community survey in February 2011 (see attached) and got overwhelming results (also attached). We followed with a letter writing campaign.”
(Note: I wrote the Town of Otsego’s petition by simply re-wording Harry’s survey. JLN)
“The town board introduced a local law that Michelle Kennedy crafted. The law was officially adopted June 13, 2011. The town had already adopted a good comprehensive plan (Nan Stolzenburg) that served as the foundation for the local law. David Staley deserves a lot of credit for the plan. He was a former chair of the Springfield Planning Board.”
Better Late Than Never
There are some late bloomers on Karen’s List, here’s Allegra Schecter’s story:
“It was Michelle Kennedy who inspired me, on a cold night in January 2011. I heard her speak in Cooperstown about the “possibility“ of banning fracking in Towns, through Home Rule based on the Frew Run gravel decision. I was so impressed that I went home and wrote a petition to ban fracking in my Town of Roseboom. I contacted her about it, and then went door to door all that Winter, eventually gathering over 300 signatures. I presented them to the Town Board – who knew nothing- and wanted to do nothing about it. So I founded ROAR (Roseboom Owners Awareness Response) Against Fracking and we raised enough money to finally convince our Town Board to allow Michelle to help us.
First, Michelle drew up moratorium for us, which we put on the shelf, to use “just in case”. She then helped us complete our Comprehensive Plan, that would support “The Protection of the Rural Environment Local Law of the Town of Roseboom”, which was finally passed (despite some Town Board opposition) in December 2012!”
Onward Home Rule
After doing 32 shale shows around the state, it has been my experience that many are called to the cause, but few actually do the work. So here’s to those few, those happy few, where the rubber hits the road. Take a bow. You know who you are.