What will you be able to say you did about fracking when someone asks you a few years from now?

March 5, 2011
Parallels between abolitionism and anti-fracking push


By George Hovis

---- —

Recently, my students in American Literature and I have been reading the 19th-century debates about slavery, including the positions taken by abolitionists and by those who called abolitionists bigots and extremists. We've also read examples of what were then considered moderate positions, such as John Pendleton Kennedy's "Swallow Barn," a novel that attempted to reconcile differences between these polarized camps and to reach some compromise. Unlike the more-rabid pro-slavery apologists, Kennedy felt that, in theory, slavery was wrong but that for a number of complicated practical reasons it was impossible to proceed in 1832 with universal emancipation. He believed that, in due time, of course slavery would be abolished, but he demurred to speculate about when precisely that eventuality would arrive. For a gradualist like Kennedy, the positions of fugitive slaves such as Frederick Douglass and Harriet Jacobs, who called for immediate universal emancipation, were rash and likely to end with devastating results.

From our 21st-century perspective, most readers praise the heroism of the abolitionists and see gradualists like Kennedy as at best blind to the sufferings of millions of human beings held in bondage. My students are often less frustrated with the southern planters directly responsible for their "peculiar institution" than they are with the northern businessmen who were reluctant to speak out against slavery for fear of raising the price of cotton. What perhaps gets my students most upset is the Compromise of 1850, including the infamous Fugitive Slave Law, which made punishable by up to six months in prison and a $1,000 fine anyone in the free north aiding or harboring a fugitive slave. As Harriet Jacobs laments in her "Incidents in the Life of a Slave Girl," this law facilitated the efforts of southern slave owners to come north and recapture their stolen "property," including any children born in the north to a mother who had escaped from bondage in the South.

How, my students want to know, could the population of the free states stand idly by and allow such a compromise? It is very difficult for them to appreciate the nuances of the historical context -- how, for example, when Ms. Jacobs' owners traveled to New York to reclaim their property, they were on hard times, and their slave property constituted a majority of their total property. Or, reflecting on the perhaps regrettable fact that the southern agricultural system was thoroughly built upon the system of slavery, a universal emancipation would likely cause chaos throughout the national economy. Today, of course, such nuances disappear in light of the commonly held belief that human bondage is morally reprehensible and unacceptable.

There are those who will no doubt take offense at my comparison of the 19th-century effort to abolish slavery in the U.S. to a current debate that is seemingly without any possible connection: hydrofracking and the dangers it poses to the environment and particularly to our watershed. I by no means wish to equate these two issues but merely wish to focus on a few striking similarities in the ways the debates manifest themselves within the general public. I believe there is in most people a healthy mistrust of taking absolute positions and a belief that seeking compromise between competing ideas promotes the general good -- and in most cases this may be true. I also believe most of us wish not to give offense to our neighbors or to be perceived as rigid extremists. There are times, however, when, despite seemingly rational arguments to the contrary, the correct position is an absolute position.

There are some causes where neutrality and compromise merely enable exploitation. In the early and mid-1800s, when gradualists were arguing that slavery would, of course, eventually become obsolete, pro-slavery forces were expanding westward, working diligently to open vast new territories to human bondage. Today, many believe that gradually our dependence on fossil fuels will be replaced by renewable forms of energy and serious efforts at conservation, while meanwhile our consumption continues to increase, and the gas and oil industry makes use of dangerous technologies to drill in ever-deeper offshore water and increasingly ecologically vulnerable places like upstate New York. Someone has to draw the line and say "not here." We have to set limits on production before we will ever seriously invest in already available technologies for renewable energy. And we cannot wait for our elected officials someday to act on our behalf. We citizens must appreciate what Martin Luther King Jr., understood in the 1960s to be the "fierce urgency of now."

When students today look back to the often complex and nuanced debates about slavery from 150 years ago, all of the nuance disappears in light of the one fundamental truth that slavery is an abomination. One hundred fifty years from now, I believe students will be equally horrified by the way this generation treated our common environment, that we would show such reluctance to pursue aggressive development of renewable energy because it would mean shifting priorities. Today we see the economic challenges and all of the competing legitimate perspectives. One hundred fifty years from now, most of these complexities will disappear, and all that our descendants will see is whether or not we collectively allowed the gas industry to exploit and pollute our natural environment and possibly irrevocably damage our region's aquifer. It may not require 150 years for this radical change of consciousness. When a son or daughter comes to you as an adult unable to drink the water for a very rational fear of carcinogens, and she asks you, "Dad/Mom, when you had a chance to stop them, what did you do?" And you try to explain about the complex issues and how many of your neighbors were afraid of polarizing the community and how you tried to find some compromise because you didn't want to offend anyone, and how certainly the landowner coalitions had their valid arguments, and your child repeats, "But, what did you do?" I don't want to have to tell my children that what I did was nothing, because how would I live with myself?

For anyone wanting to take action, one place to start is to contact your local, state and federal elected officials. Make a phone call. Start with Gov. Andrew Cuomo at (518) 474-8390. Write a letter or e-mail. Attend a meeting or rally. Talk to a neighbor.

George Hovis is an associate professor of English at the State University College at Oneonta.

This was published by The Daily Star
http://thedailystar.com/guestcolumn/x1422725707/Parallels-between-abolitionism-and-anti-fracking-push

Salt, Metal, and Concrete

Letters to the Editor: May 7, 2011
Daily Star
http://thedailystar.com/opinion/x1859508512/Letters-to-the-Editor-May-7-2011

Salt, metal and concrete make a bad combination

By this time, the April 25 pro-drilling forum presented at the Holiday Inn will be over.

I would like to make some points that I haven't heard at other meetings. The recent fracking fluid spill in northern Pennsylvania contained extremely salty water. If you were to look up "Geologic Salt Formations Northeastern U.S." on the Internet, and go to "Major U.S. Salt Deposits," you will find that southern New York and northern Pennsylvania sit on top of major salt deposits that are hundreds to thousands of feet thick.

It's evident that the spill in Pennsylvania contains some of this salt. Anyone who has spread salt on concrete will have to admit that salt can eat through concrete. The fracking well pipes are supposedly encased in concrete to prevent leaks.

Also, anyone who drives a car in New York can see what salt does to metal. The gas well pipes are constructed from metal. Will my grandchildren or great-grandchildren curse me for not trying to prevent the installation and future breakdown of these wells and the contamination of their land?

Ken Nolan

Gilbertsville

Attorney Helen Slottje's Presentation

> John Conway: Our first speaker is Helen Slottje, the managing attorney of
> Community Environmental Defense Council, a pro bono public interest law firm
> based in Ithaca, New York. The CEDC works with citizen groups and
> municipalities that want to retain their rural character in the face of
> threatened industrialization, especially that from gas drilling. The CEDC
> recently prepared a local law for a gas drilling task force in a town in
> Tompkins County in upstate New York that prohibits high-impact industrial
> uses. It is my honor this morning to introduce to you Helen Slottje.
>
> Helen Slottje: So, hello. Thank you all for coming out here this morning. And
> many thanks for the organizers, Highland Concerned Citizens and their
> collaborators from across this region.
>
> We're based in Ithaca, where my husband and I live, and where we want to be
> able to continue to live in peace and quiet and clean air, and that's why many
> of us are here today. We made specific choices to live in upstate New York,
> whether along the banks of the Delaware River, or on an organic farm, or in a
> cabin the middle of the woods. And the truth is that we want it to stay that
> way; that's why we came to live here.
>
> And so, we're often accused of being NIMBYs, but the fact of the matter is, we
> don't want this in anyone's back yard -- not here, not in PA, not out west,
> and not in other countries. We believe, as I'm sure many of you do, too, that
> methane gas is a bridge to a very ugly future, and to a climate that's even
> more out of balance as we pump methane gas that's tens of times more potent
> than CO2 into the atmosphere.
>
> I was recently on a panel with Sandra Steingraber and she had the most vivid
> description of the situation we're in that I have heard. And what she said
> went something like this -- with apologies to Sandra -- she's a much better
> poet than I am.
>
> Imagine you have a family member who's addicted to alcohol. They've gone
> through all the beer, all the wine, and all the liquor, and they've even gone
> through the cough syrup and everything else they can find. Then they learn
> that buried under the foundation of the family home, stashed away during
> Prohibition, is a stash of alcohol, and that family member sets about buying
> explosives and dynamite, and they're going to blow up the floor of the house.
> Do you ask this person, "Pretty please," to try to slow down and maybe not
> wreck the house? Do you say, "Well, let's come up with some regulations and
> try to regulate the blowing up of the foundation of the house?" Or, do you
> say, "No. We're going to bar the stairs to the basement and you cannot blow up
> our home."
>
> And so, that's why we're all here today -- to try to call this crazy plan off.
> So, we're looking for ways to cut off our addiction to fossil fuel, and so, in
> the absence of this addiction to fossil fuel, clearly this hare-brained scheme
> of methane gas extraction would be seen for what it is. But how do we go about
> saying "no"? What can we do?
>
> I'm a New York lawyer, and I'm here today to talk about local land use law in
> the State of New York, and how we can use local laws to just say "no."
>
> We're fortunate here in New York to have much stronger home rule protections
> than many other states, including Pennsylvania. And unlike Pennsylvania, we
> here in New York have the power to say "no" to a wide variety of land uses.
> But before I begin to bore you with the answers to all the legal questions
> that you had about land use planning in New York but were afraid to ask, let
> me address one other question: "What are we going to do if we don't focus on
> extracting methane gas?"
>
> First, the answer to fossil fuel addiction is not to continue the extraction
> of fossil fuels. Only when we take some of the fossil fuel options off the
> table will we get serious about alternative energy sources, and not just wind
> or solar, but biomethane, district heating, geothermal, and options that we
> haven't even invented yet, because we keep subsidizing the oil and gas
> industry, convinced that we can't get along with out them. But in fact, they
> can't get along if they don't have something to sell us.
>
> So, they're the ones scrambling to find more things that they can control and
> sell us, and they have no incentive to try to find energy that they cannot use
> to control the world economies and governments. And this choice they offer us
> of jobs or the environment -- often framed as the economy or the environment
> -- is a false choice. Healthy environments provide tremendous economic
> benefits, and a healthy environment leads to economic growth.
>
> Degraded, polluted environments are not a pathway to economic prosperity -- in
> fact, the opposite. Poverty is the highest in the most polluted states, and
> research shows that the poor just didn't happen to wind up there; the poverty
> comes after the environmental devastation. We can look to PA and West Virginia
> and out west and see whether or not resource extraction has made those
> communities rich, or the corporations rich and the communities poor.
>
> Which brings us back to the question that got us all out of bed and not doing
> the things we prefer to do, and instead focused on becoming educated activists
> and community leaders -- "What can we do?" So now, for the legal lecture.
>
> So, in New York, localities derive their power from the State Constitution,
> and it's implementing legislation, the Municipal Home Rule Law, and the town,
> village or city law as appropriate. The New York State Constitution empowers
> local governments to adopt, amend and repeal zoning regulations, the power to
> perform comprehensive or other planning work, and the power to enact laws
> relating to the government, protection, order, health, safety and wellbeing of
> persons or property within their municipality. I've asked to be here this
> morning to talk about a land use approach that our law firm has developed that
> we believe will allow communities to preserve their rural character and local
> agriculture, tourism and sustainable economies in the face of threatened
> industrialization.
>
> First, let me explain that I've spent the past two years working on gas
> drilling issues. When I went to my first gas drilling meeting, I had no
> particular opinion one way or the other about gas drilling. I certainly wasn't
> an environmentalist. But thousands of hours of research later, I must tell you
> that now I don't think that gas drilling is being done safely in our country
> at this time. You might have already guessed that. But, when I think about the
> most negative impacts from this looming industrialization, I think of the
> truck traffic and the associated destruction of our roads, of our enjoyment of
> our homes, and the negative impacts from all this diesel exhaust. And this is
> the impact that can most change our region, and has an impact that occurs even
> when everything goes right.
>
> So, as you listen to me here today -- and just as importantly, when you listen
> to other advocates including those for the gas drilling companies, the
> regulatory partners, and landowner coalitions -- you need to know what is
> motivating that person. Our motivation and bias is that we are looking into
> this issue not from the perspective of, what can we do to help localities
> accommodate industry? What can we do to make sure that we don't pass a road
> use ordinance that industry says is too onerous? Or, what federal or state
> funding we might be able to find so we can build infrastructure or train our
> school children to take some of the most dangerous jobs that are out there?
>
> Our firm is looking at this issue from, what can we do to say "no"? So, that's
> my bias -- our bias as a firm.
>
> In fact, I'm proud of this bias, because given the way lawyers and law firms
> and corporations work, usually lawyers are only out looking for clients who
> can pay them. But how can an eagle, the night sky, or the Delaware River pay a
> lawyer's bill? So, with the help of grants and donations from regular people,
> we seek to give a voice to the environment and individual citizens who would
> not otherwise have the funds to work with a lawyer on environmental causes.
>
> As we've investigated and researched the problems with industrialization and
> truck traffic and the toxic waste that the industry conveniently calls "brine"
> -- and we didn't just accept what industry and their regulatory partners and
> the landowner coalitions and all of their lawyers had to say as a starting
> point. When we simply started at the beginning and asked the question so many
> of you have asked, "Can they really just come into our town and do whatever
> they want -- put a drilling rig right next to my house or on a farmer's field,
> and just dump exploration and production waste in our county landfill? Haul
> toxic fluids in for recycling? Bang pipes next door all night long? Coat our
> homes with silica dust?"
>
> We concluded that if a town used zoning to prohibit the land-based and
> community-based negative impacts of such activities, the answer was "no," they
> can't do that, at least not if the town has the political will to say "no" and
> follow certain procedures and a process in getting there.
>
> "But surely, this can't be true," you might say. "We've been told for so long
> and by so many that there's nothing we can do." So, let's run through the
> objections that we hear when we talk about the proposal that towns can draft a
> zoning ordinance that protects the health, safety and welfare of its residents
> through the prohibition of high-impact industrial uses.
>
> And when I talk today about our proposed law, I am speaking of this draft law
> that we prepared for a town gas drilling task force in Tompkins County,
> although a similar law can be drafted for other municipalities that's tailored
> to that community's comprehensive plan and community goals.
>
> So first, some people have asked, "Does the town have the right to exclude or
> ban an industrial use -- any industrial us?" -- not just, say, gas drilling.
> These people have heard that towns are restricted from prohibiting certain
> uses, such as adult entertainment or housing for people with very limited
> means. And so, they wonder, do the use restrictions apply to banning
> industrial uses? They do not. Those restrictions are very limited and very
> specific in nature. They have to do with the protection of constitutional
> rights, specifically First Amendment rights such as free speech. But there is
> no question that exclusion of a specified industrial use is a proper and
> legitimate use of land use laws.
>
> There's no dispute. It's what lawyers call "black letter law." In a 1974 case
> known as The Village of Belle Terre, a case which, by the way, involved a New
> York State zoning ordinance, the United States Supreme Court specifically
> stated the town had wide latitude to use its zoning laws to protect the public
> welfare. The court held, and I quote, "The concept of public welfare is broad
> and inclusive. The values that it represents are spiritual as well as
> aesthetic. It is within the power of the legislature to determine that the
> community should be beautiful as well as healthy, spacious as well as clean,
> well-balanced as well as carefully patrolled ... a quiet place where yards are
> wide, people are few, and motor vehicles restricted, are legitimate guidelines
> in a land use project. This goal is a permissible one. The police power is
> ample to lay out zones for family values, use values, and the blessings of
> quiet seclusion and clean air make the area a sanctuary for people."
>
> And the New York Board of Appeals, the highest court in the state of New York,
> reached the same conclusion in a case called Gernatt Asphalt. And in Gernatt,
> a town had used zoning to ban mining, and the people who wanted to mine
> challenged the ban, saying it was unconstitutional, exclusionary zoning. The
> court -- again, the highest court in New York -- rejected this challenge. The
> court said, "We have never held that the exclusionary zoning test, which is
> intended to prevent a municipality from improperly keeping people out, also
> applies to prevent the exclusion of industrial uses. A municipality is not
> obliged to permit the exploitation of any or all of its natural resources
> within the town as a permitted use if limiting that use is a reasonable
> exercise of police power to prevent damage to the rights of others, and to
> promote the rights of the community as a whole." That's the holding of the New
> York Board of Appeals, again, the highest court in the state of New York.
>
> Okay. Well then, isn't such a ban inconsistent with state or federal policy?
> And yes, the state and federal government have indicated broad support for
> natural gas extraction, buying industry's promotion of this fossil fuel as
> somehow green, and have gotten even the national environmental groups so
> desperate to stop the pillage of mountaintop removal that they're willing to
> make the sacrifices that methane gas entails. But I digress.
>
> We are not a nation or state of a single policy. Let us not ignore there are
> many articulated state and federal policies that support the prohibition of
> high-impact industrial uses in rural areas. I'm only going to talk about two
> state policies.
>
> Let's start with, say, the State Constitution. Our constitution provides, "The
> policy of the state shall be to conserve and protect its natural resources and
> scenic beauty, and encourage the development and improvement of its
> agricultural lands for the production of food and other agricultural products.
>
> "The legislature, in implementing this policy, shall include adequate
> provision for the abatement of air and water pollution, and of excessive and
> unnecessary noise, the protection of agricultural lands, wetlands and
> shorelines, and the development and regulation of water resources."
>
> So, the proposed law would seem to be consistent with that.
>
> Next, why don't we look at the Environmental Conservation Law, the very law
> that contains the article on oil, gas and solution mining. The policy of that
> entire law, and not just the section on gas drilling, provides, "The quality
> of our environment is fundamental to our concern for the quality of life. It
> is hereby declared to be the policy of the state of New York to conserve,
> improve and protect its natural resources and the environment, and to prevent,
> abate and control water, land and air pollution in order to enhance the
> health, safety and welfare of the people of the state, and their overall
> economic and social well-being.
>
> "It shall further be the policy of this state to develop and manage the basic
> resources of water, land and air to the end that the state may fulfill its
> responsibility as trustee of the environment for present and future
> generations." Again, another policy that our proposed law is consistent with.
>
> But one principle of preemption analysis, which is what we're really talking
> about when we discuss whether this local law would be against federal or state
> policy, is that when one is trying to determine whether a federal or state law
> or policy preempts, supersedes or -- put another way -- invalidates a local
> law, is that you don't go looking for implied preemption when the extent of
> the preemption is set forth expressly in the statute. And that makes sense. If
> the legislature has taken the time to tell us what is preempted and what
> isn't, we don't need to go hunting around looking for more insight into their
> intentions.
>
> And if you go back to the Gernatt Asphalt case, the court there said exactly
> that.
>
> And in another case in 2008, the Court of Appeals held that, interpreting an
> express preemption clause, it is unnecessary to consider the doctrines of
> implied or conflict preemption. Instead, the resolution turned solely upon the
> proper interpretation of the statutory language.
>
> So, the Court of Appeals has gone on to say that, "The inconsistency of a
> local zoning law with a state law general applicability is, of course,
> insufficient to trigger preemption power, for if that were so the supersession
> authority granted by the Municipal Home Law Rule would be meaningless." So,
> that's all good news for us.
>
> What does happen when local zoning law intersects with state law? In New York
> State, statutes that affect the zoning powers of local governments fall into
> three broad categories: cases where the local government gets no say. The
> state decides where it wants to put a particular use, and that's it; cases
> where the local government can say "yes" or "no" to the use, but once you say
> "yes," that's it; and situations where you can say, "yes, "no," or, "yes with
> these conditions."
>
> And the legislature's pretty good about making it clear which category a law
> falls into. So, when they want to site facilities for the mentally disabled,
> they expressly withdraw the zoning power of the local government. And then
> there are ones such as laws regulating solid waste where the statutes
> specifically contemplate municipal zoning and regulation.
>
> And then there are laws like the Mining Law, the Alcohol Beverage Control Law,
> and the Oil, Gas and Solution Mining Law, that allow a municipality to say
> "yes" or "no" to a use, but once you say "yes" you're prohibited from
> regulating the operation of process of the use. So, part of our proposed law
> deals with solid waste, and there's no issue with that under the state law,
> because municipalities are free to zone and regulate solid waste.
>
> But other parts of our proposed law would pick up methane gas exploration and
> the disposal of their waste because of the high externalities that that
> industry currently inflicts on the communities around it. So, does this run
> afoul of the prohibitions in environmental conservation law? We don't think
> so. What that law says is that, "The provisions of this article shall
> supersede ..." ... okay, there's our express supersession language, so in this
> case we don't need to go around searching for more conflicts that put it out
> there. "The provisions of this article shall supersede all local laws or
> ordinances relating to the regulation of the Oil, Gas and Solution Mining
> industries;" ... and then there's an exemption clause, an exception to that
> prohibition against regulation. And that reads, "but shall not supersede local
> government jurisdiction, overlook roads, or the rights of local governments
> under the Real Property Law."
>
> So, a local law may regulate the Oil, Gas and Solution Mining industries if
> it's a law that regulates the roads or real property taxation and is otherwise
> within the power of the municipality.
>
> The statute reads again, "The provisions of this article 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 government under the Real
> Property Law."
>
> Tthe question is, what does "relating to the regulation of the Oil, Gas and
> Solution Mining industries" mean? When does a local law relate to the
> regulation of this industry?
>
> In answering this question, we can turn to our court, and in fact the New York
> courts have had occasion to interpret similar phrases, including in the Mining
> Statute, which previously read much like the Oil, Gas and Solution Mining
> Statute reads now.
>
> So, what did the court decide? The Court of Appeals held that regulating an
> industry meant regulating its operations and processes, and did not mean local
> zoning aimed at limiting the externalities of a land use. And if you look at
> the legislative history of the statute to try to get some idea of what the
> intent of the legislature was, there's barely a mention of this particular
> section because, in fact, this was part of a larger bill that was aimed at
> increasing permitting fees so that the DEC could hire more regulators. I guess
> some things really never do change.
>
> We don't think that this interpretation of the statute ... that the statute
> says what it means -- localities cannot regulate industry -- but that doesn't
> mean that they can't apply their local land use laws is particularly bold,
> visionary, clever, or creative ... sometimes I'd like to think so.
>
> This is not a situation where we're trying to create new law attempting to
> overturn a law that we don't agree with, or even trying to distinguish a lower
> court holding that goes against what we're saying. It's a fact that there's
> not one single published New York State case that says municipalities cannot
> do what we suggest they can do -- to ban high-impact industrial uses.
>
> So, what's the next objection? Okay, well, won't the landowners and the
> landowner coalitions, or their lessees, sue the town if we pass such an
> ordinance? Well, of course, anyone can sue anyone for practically anything,
> and in the land use context it's not unheard of for disgruntled landowners to
> sue a town when a town passes a zoning ordinance that they don't like,
> alleging that the law constitutes a taking of their property. But, in the
> first place, we don't believe that a prohibition on high-impact industrial
> uses is a compensable regulatory taking.
>
> Certainly, when the government physically invades your property, or takes it
> and subjects it to its own use, the government is required to compensate you.
> But enacting regulations that limit a use only results in a compensable taking
> when the regulations so diminish the value of property that the owner is left
> with no or virtually no permitted use of the property -- no economic value.
>
> In this case, the owner of the property is left with whatever the use of the
> property is now, which is presumably something other than high-impact
> industrial use. Maybe it's a residence; maybe it's a farm; but presumably it
> has value.
>
> Furthermore, to the extent that the gas drilling industry -- at least as it's
> currently executed -- falls into this definition of high-impact industrial
> use, and would thus be prohibited, in New York the only right that's impaired
> is the right to explore, because in New York no one owns methane gas until
> it's been brought to the surface and captured. So, you don't own the gas in
> the first place. And furthermore, gas drilling is not completely excluded
> under the terms of this proposed ordinance. The only reason gas drilling falls
> into the definition of high-impact uses is the externalities that result on
> the community and surrounding properties given how industry currently
> operates. Property owners remain free to drill for oil and gas to the extent
> they can do so without imposing major traffic congestion on everyone else;
> produce deleterious substances that have to be disposed of elsewhere; and have
> other negative impacts on their neighbors.
>
> Well, we like to think, "It's my property and I can do whatever I want."
> That's only true if you can do what you want without negatively impacting
> other property owners because, after all, they have the right to enjoy their
> property as well. No one has the right to conduct a nuisance. It's not a
> property right enjoyed by industry, so nothing's been taken. But still, you
> might say, "Well, even so, the town can get sued and would have to defend the
> lawsuit."
>
> So, we built into the proposed law a requirement that an administrative
> challenge be brought before the town as a condition before bringing any
> lawsuit alleging any sort of taking. So, if a landowner were to claim, "This
> is an unconstitutional deprivation of my property rights, substantive due
> process, or equal protection," they have to bring a claim in front of the
> town. And both federal and state courts require that administrative remedies
> be exhausted prior to filing for judicial relief.
>
> So, a town would not be in a position where it was blindsided by a court case
> seeking damages. A town would be in a position to evaluate the merits of a
> claimant's case and to pursue an appropriate course in advance of a court
> filing. In other words, a town would be in a position to control its own
> destiny as to whether to stand its ground or retreat. If it retreats at the
> administrative remedy stage, then there's no court case, and of course no
> damages.
>
> In conclusion, we don't believe the legal strategy that we have outlined is
> particularly novel or out of the box. It doesn't involve challenging the
> holding of any published judicial decision, and there's absolutely no reported
> New York case at any level that says that what we're suggesting cannot or
> should not be done. Well, of course, no one can guarantee that a lawsuit will
> not be filed. We believe it is much more likely than not that a town would
> prevail in a lawsuit if one were brought challenging the law, and moreover
> there's this Administrative Remedy provision which should act to place a town
> in control of its own liability destiny should any real risk of a damage award
> arise.
>
> I hope that we have addressed the concerns and questions that you may have
> about whether or not a proposed law that would prohibit high-impact industrial
> uses is a worthwhile approach in the first place, and that we can next turn to
> a discussion of what such a law would actually look like in towns like yours.
> Thank you very much.

HOME RULE

HOME RULE – A COMMUNITY’S LAST LINE OF DEFENSE AGAINST FRACKING

Despite the passage in the New York State Assembly of three crucial pieces of legislation concerning natural gas extraction, the legislative session ended yesterday without New York State Senate approval.

The Assembly-approved bills include:

- The Moratorium Bill: would enact a one-year moratorium on gas drilling using hydrofracking

- The Hazardous Waste Bill: would close a loophole exploited by gas industries to avoid requirements for the disposal of hazardous waste

- The Home Rule Bill: would clarify the right of local communities to pass bans and ordinances in relation to drilling activities

While Senate Democrats demonstrated wide support for all three bills, the leadership of the Republican-controlled Senate did not let them come to the floor. If drilling were to begin in parts of New York State, vigorous federal and state regulation of its hazardous impacts would offer the most uniform and far-reaching protection for air, water and quality of life in communities. However, in the absence of what is likely to be insufficient regulation, Home Rule initiatives may be a community’s last line of defense against fracking.

Throughout the Catskills and neighboring areas, more and more communities are exploring the use of bans and ordinances on the local level to safeguard aquifers and regulate zoning, hazardous waste, and road use in order to protect them from the highly destructive practice of hydrofracking.

The New York State Assembly Home Rule bill sought to end the confusion about whether local zoning ordinances are preempted by state law and regulation in relation to the oil, gas, and solution mining industries because municipalities within New York State may not regulate these industries. However, many communities have already started to pass bans and ordinances that would regulate land use and other matters involving public health, safety and welfare that fall outside of the State’s regulatory program.

Join the Groundswell of Towns Who Are Already Taking Action

In the last couple of weeks many towns have adopted ordinances to ban hydrofracking. On June 14, 2011, the Town of Wales adopted a ban on the practice, and the Town of Ulysses is clarifying an already-existing ban, which exists under current town zoning on heavy industrial use. Two weeks ago, the Towns of Springfield and Middlefield in Otsego County followed the Town of Otsego in adopting measures to prohibit natural gas drilling and hydrofracking. The Town of Dryden voted to put a zoning amendment to ban hydrofracking on the table and scheduled a public hearing for July 20^th, and the town of Oneonta received a petition from more than 1/3 of its registered voters to ban drilling and hydrofracking.

Large numbers of people are organizing to take action. In Dryden, more than 1,500 people signed a petition to ban “heavy industrial land uses” and prohibit “the imposition of burdens, costs and negative impacts on citizens and property owners that would likely…result from such heavy industrial land uses.” In Springfield, 95% of those who responded to a survey sent out to residents favored a local law banning drilling and hydrofracking.

These are only some of the communities that are taking action and they are showing that it can be done.

Native American Prophesies

For over a century the Native American shamans have prophesied the end of an earth cycle, the disappearance of the white man, and the return of all living things which had vanished under the pressures of the present world. The time, we are told, is near. As we observe governments, industries, and ourselves, we can see a system of waste and pollution so widespread as to cast a shadow across generations to come. It doesn't take a clairvoyant to predict disaster. Fortunately, we are aware of the need for change. The question is, whether the necessary changes in our institutions and ourselves will occur faster than the production of pollution generated by our old patterns of behavior. Only by honoring Mother Earth, Indian shamans tell us, can we avert disaster.

In the last century, a Sioux shaman had this vision of America's future: "I saw this in my mind not long ago: in my vision the electric light will stop sometime. The day is coming when nature will stop the electricity. People are being too smart, too clever; the machine stops and they are helpless because they have forgotten how to make do without the machine."

Sun Bear wrote: "I saw camps of people around natural water, such as rivers, creeks and springs, working hard to produce their food, but thankful to be alive, for only here and there were small bands of people alive. I've seen people fleeing great cities, and other people dying from pollution and cities abandoned."

Methane and Contaminants Migrate to Drinking Water

This problem has been going for the past few years and in each case we read that they are investigating the cause…

http://www.denverpost.com/news/ci_12195167

The Garfield County report is significant because it is among the first to broadly analyze the ability of methane and other contaminants to migrate underground in drilling areas, and to find that such contamination was in fact occurring. It examined more than 700 methane samples from 292 locations and found that methane, as well as wastewater from the drilling, was making its way into drinking water not as a result of a single accident but on a broader basis.

Otsego County Fair Booth schedule

Click on map to see an enlarged view.

Subject: NO DRILL - NO SPILL at Otsego County Fair -

Will this be the news from Morris in the future? And what about exporting our natural gas to China?

Dallas-Fort Worth's ozone season has started

Posted Sunday, Jun. 12, 2011

....Dallas-Fort Worth's ozone season has started.The first violation of ozone standards has come early this season. There's a lot of hot weather ahead. That heat takes two components of bad air, oxides of nitrogen and volatile organic compounds, and bakes them to produce ozone.

Twenty monitoring sites across the region keep track of ozone. The ones that most often have exceeded the federal standard in recent years are north and northwest of Fort Worth, specifically the Eagle Mountain and Keller monitors. That's where the dominant winds blow the bad stuff that comes from sources across the region.

That's also where much of the Barnett Shale natural gas drilling has taken place in recent years.

http://www.star-telegram.com/2011/06/12/3146552/dallas-fort-worths-ozone-season.html

Worst Drought in More Than a Century Strikes Texas Oil Boom

Monday, June 13, 2011

The water crisis in Texas, the biggest oil- and gas- producing state in the U.S., highlights a continuing debate in North America and Europe over the impact on water supplies of a production technique called hydraulic fracturing. Environmental groups are concerned the so-called fracking method may pose a contamination threat, while farmers in arid regions like south Texas face growing competition for scarce water.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2011/06/13/bloomberg1376-LMOWYK1A1I4H01-66BMA7PK8EFLVJONE0GVFRPD5B.DTL&ao=all#ixzz1PGfXaHKr

http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2011/06/13/bloomberg1376-LMOWYK1A1I4H01-66BMA7PK8EFLVJONE0GVFRPD5B.DTL&ao=all




China Completes Natural Gas Transmission Pipelines
2011-06-13

It will be China's first natural gas pipeline to transmit gas from a foreign country.

Experts said the project will improve China's energy consumption structure by increasing natural gas use.

http://english.cri.cn/6909/2011/06/13/2741s642586.htm


Tanker-Truck Accident Backs Up Traffic on Interstate 79
Posted Sunday, June 12, 2011 ; 06:51 PM
Updated Monday, June 13, 2011; 10:38 AM

A tanker-truck hauling brine water was traveling south bound when it lost control and flipped on its side.

http://www.wboy.com/story.cfm?func=viewstory&storyid=101347

Spill Halts Drilling at Doddridge County Well

Last Updated on Monday, 13 June 2011 22:46

An oil spill in Doddridge County has prompted the Department of Environmental Protection to issue a Cease Operations Order to a Ritchie County oil and natural gas drilling company.

According to a press release from the DEP's Office of Oil And Gas, the spill happened last week at the Swiger 1 well pad in the England's Run area.

Apparently crude oil overflowed from a central storage tank operated by Hall Drilling and into England's run.

The tanks are used to temporarily store wastewater and oil from drill sites.

Hall Drilling was cited for causing the tank to overflow, failing to have appropriate containment or diversionary structures and for allowing pollutants to flow into England's Run.

The company was able to contain the spill further downstream and nearby water intakes were also notified of the spill.

http://www.wdtv.com/index.php/home/local-news/7051-oil-spill-in-doddridge-county-shuts-down-well-pad

City of Oneonta Bans Gas Drilling

June 8, 2011

Oneonta Common Council bans gas drilling

By Jake Palmateer Staff Writer The Daily Star Wed Jun 08, 2011, 03:30 AM EDT

ONEONTA _ The Common Council voted Tuesday to ban all forms of natural gas drilling in city limits.

One alderman said he will work to see the city takes even more steps.

The vote was not unanimous. With Third Ward Alderman Erik Miller absent, Seventh Ward Alderman Liz Shannon abstained.

After the meeting, she said she supports the concept of banning natural gas drilling, but said the draft ordinance was poorly written.

Several members of the public spoke out in favor of the measure, including Colleen Blacklock, who submitted a petition with 1,888 signatures.

The measure makes it unlawful for any person or corporation to drill for natural gas within the city. Under the proposed ordinance, violators are subject to a maximum fine of $250 for each day a violation occurs.

"I am fully supportive of the ordinance," Eighth Ward Alderman Kevin Hodne said.

Hodne said hydraulic fracturing would be an economic disaster for the area because the high concentration of drilling rigs and equipment would affect tourism and the service industry.

"I think we are taking a good stand here," he said.

No one spoke against it.

In response to call for further action from Hartwick College professor Mark Davies, Fourth Ward Alderman Mike Lynch, who worked with Alderman Miller on the draft, said he would be looking at additional steps the city may take. These include regulating the staging areas used to store chemicals used in the hydraulic fracturing process or equipment used in the drilling.

The Common Council also voted unanimously to approve an amendment to the zoning code overhaul they passed May 17.

An area near Silver Creek that under the draft zoning code was zoned for apartment complexes, was changed to a more restrictive zone.

A mayor's public hearing on the amendment was set for June 21. Mayor Dick Miller said the zoning code overhaul passed May 17 will get his signature.

"I will be signing the new zoning code," Miller said. "I suspect that comes as no surprise to anyone.