Sunday, June 26, 2011

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.

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