One town ban is a lawsuit. A dozen town bans is a political movement. Town bans grew out of very insightful legal work and some plain hard work by a handful of savvy organizers in each town, as detailed here. Bans started in Otsego and Tompkins Counties and radiated across Upstate:
Once the frackers have lost all their legal appeals, they will be left with only one option: to try to persuade the state legislature to amend the law to eliminate Home Rule as it pertains to fracking, to in effect, allow fracking anywhere – regardless of local zoning laws – even in Central Park.
This is of course, exactly what the frackers did in Pennsylvania, they passed a Frack Anywhere law that ignores local land use ordinances, but that was subsequently overturned by a state court. It is also what they are trying to do in Colorado – where the state governor, at the behest of the gas lobby, is seeking to overturn town bans.
So we know what the frackers next stunt will be in New York. And we even know which fracking marionettes will likely carry the ALEC template Frack Anywhere bill in Albany. We even know how the bill will be worded: like Pennsylvania’s Act 13, complete with a gag order on doctors. Which is the frackers way of saying: “We can get away with fracking anything.”
So the battle to defend Home Rule will soon switch to the legislature. The frackers’ arguments will paraphrase the State of Colorado’s and the State of Pennsylvania’s:
1. “The state is empowered to promote fracking and town bans interfere with fracking.”
That argument at least acknowledges the dynamics of the situation – the DEC has stated publicly that their primary mission is to promote fracking – even changing the wording of the ECL 23 statute to that purpose ! That effectively makes the case for the towns – the DEC admits it is going to put fracking first. Which functionally leaves it to town ordinances to protect the public and the environment – since the towns have no legal obligation to promote fracking.
Had the DEC wanted to advance this line of reasoning, they would have intervened on the side of the plaintiffs in Dryden and Middlefield. They did not for two very good reasons. Read on.
2. “The state alone can adequately protect the public, the environment, etc.”
That implies omniscience over land uses – of which the state has none. The proposed HVHF regulations are literally blind to land uses. With few minor exceptions – the proposed setbacks refer to subterranean rights – mineral rights, not surface rights, land uses.
So the state, the DEC, cannot plausibly argue that it protects surface uses. And in fact it never has – because the DEC has consistently admitted that it defers to towns on land use (surface) matters. If the state cannot make those arguments, the state cannot ignore Home Rule – because surface uses are precisely what comprehensive town plans address.
If this were not so, the DEC would have intervened on the part of the plaintiffs in Dryden and Middlefield – the way the states of Colorado and Pennsylvania have taken the frackers’ position in their plan to suppress Home Rule. Colorado intervened under the pretense that it’s minerals management agency adequately addresses land uses. Pennsylvania simply defended its ALEC template law.
In New York, both the operational history of the DEC, legal precedents and state statutes argue in favor of Home Rule – as embodied in town bans – and as a matter of principle at the legislative level. No surprises there. That is the norm in most states. The anti-Home Rule actions in Colorado and Pennsylvania represent aberrant behavior paid for by the gas lobby.
What to do now
If your town board is not already in the process of enacting a ban, get a new town board. This year. Because, in politics, there really is strength in numbers.
If your state senator is not supporting the moratorium extension, get a new state senator. At the first available opportunity. Because that is where the battle line is headed. And, to date, there is nothing that the state senate has done that would indicate that it is not controlled by the gas lobby, which in turn is controlled by out-of-state firms and foreign investors – who would turn Upstate into a gas colony – for export overseas.
Might keep in mind that the New York legislature passed what is unquestionably America’s worst Compulsory Integration law in 2005 – written word for word by Chesapeake’s lobbyist. Unanimously. The DEC’s enforcement of the Compulsory Integration law is indicative of what the agency thinks of land uses and the rights of surface owners: Not a hole fracking lot.