Where Does A Gas Lease Begin and End?

Where does a gas lease begin and end?

Professor Anthony Ingraffea speaks to an interested crowd about high volume slick water hydrofracturing and the impact it may have on one's fellow man.

A really big thought in just a bit more than a minute.

GO, ADVOCATES FOR MORRIS!

47 Groups Call on Cuomo for Statewide Fracking Ban



 Broad-Based Coalition Denounces DEC Fracking Plan, Demands Protection for all New Yorkers From Fracking

ALBANY, N.Y. - July 7 - Following Governor Andrew Cuomo’s decision to allow the process of hydraulic fracturing (“fracking”) across 85 percent of New York’s Marcellus Shale, a coalition of 47 consumer, faith, food, environmental and multi-issue advocacy organizations today called for a statewide ban on fracking. The coalition includes several national and state organizations including Food & Water Watch, Frack Action, Democracy for America, Friends of the Earth, Credo Action, Center for Heath Environment and Justice, Catskill Mountainkeeper and Citizen Action New York.

Last week, the New York Department of Environmental Conservation (DEC) released its recommendations on fracking, allowing the practice in most areas of the state outside of the New York City and Syracuse watersheds. The DEC’s plan, which informed Governor Cuomo’s decision, leaves many New Yorkers without equal protection from the environmental and public health risks associated with fracking, and still exposes New York City and Syracuse residents to many impacts of shale gas drilling, including toxic air emissions.

“The DEC’s recommendations on fracking will turn many areas of New York into sacrifice zones, allowing this toxic, polluting practice at the detriment of public health, the environment and rural economies,” said Food & Water Watch Executive Director Wenonah Hauter. “We urge Governor Cuomo to protect New York and its residents over the special interests of the oil and gas industry by banning hydraulic fracturing in New York State.”

Under the DEC’s plan, thousands of new wells will be drilled across New York, using billions of gallons of fresh water, and industrializing rural communities across the state. Opponents of fracking fear that allowing the practice to flourish in some areas will breed catastrophic accidents that could affect all New York residents.

"Has governor Cuomo been hoodwinked by industry into thinking this is safe? The fact remains that New York needs to have some serious fundamental questions answered about the dangers of hydro- fracturing, not just carve out some special places to placate New York City,” said Wes Gillingham, Program Director, Catskill Mountainkeeper.

“Governor Cuomo got it wrong when he said fracking can be done safely,” said Claire Sandberg, Executive Director of Frack Action. “Not only does this practice carry an unacceptable level of risk, but there is no rationale for drilling when we know that the promises of limitless energy and continuous economic growth are not borne out by the facts.”

The coalition also presented Governor Cuomo with a letter signed by 47 organizations urging him to ban fracking in New York.

“By banning fracking in the New York City and Syracuse watersheds, the Cuomo administration is clearly demonstrating awareness about the potential for serious hazard to the citizens of those municipalities,” said David Braun, co-founder of United for Action. “ It is unacceptable however, that they create a double standard and leave the rest of the good citizens of New York state completely vulnerable to serious toxic threat, and protect only a portion of the population. Why are upstate citizens any less important?” 


"Fracked natural gas is a dirty fuel that will make global warming worse,” said Alex Moore, dirty fuels campaigner, Friends of the Earth. “Governor Cuomo should put clean water and a safe environment ahead of gas company profits."

This opposition to fracking heats up here as other states have passed legislation banning the practice. Last week, the New Jersey State legislature sent Governor Chris Christie a bill that would ban fracking in the state, and North Carolina Governor Bev Perdue recently vetoed a bill that would have allowed fracking. To date, more than 60 municipalities in the United States have passed measures against fracking.

“It’s clear that New Yorkers strongly oppose fracking, and want all of their water protected from it. Nearly 20,000 New Yorkers signed our petition to Governor Cuomo in just the first 24 hours,” said Elijah Zarlin, Campaign Manager, CREDO Action. “It would be outrageous for Governor Cuomo to allow fracking in New York."

A recent investigative series by The New York Times found that the natural gas industry has exaggerated the economic benefits of fracking, while downplaying its risks to public health and the environment.

“It’s wrong and unfair for the Cuomo administration to lift the ban on fracking, as it is a technology that has proven to destroy land, water, public health and economic growth,” said Lois Marie Gibbs, executive director of the Center for Health, Environment & Justice. “It is especially despicable to provide an exception for the Syracuse and New York City watersheds, while opening up the rest of the state to hazardous drilling. If it’s too dangerous for these urban areas, then it is too dangerous for all of New York. People across the state deserve equal protection. Governor Cuomo, don’t frack New York!”

Opponents of fracking worry that Cuomo’s support of the practice in some areas of New York signals a deference to industry. Thousands of New Yorkers have called Governor Cuomo’s offices asking him to ban fracking and hundreds of concerned citizens have flooded his Facebook page, asking him to assert real leadership by banning fracking in New York.

Groups urging Governor Cuomo to ban fracking in New York include:

Food & Water Watch;

Frack Action;

CREDO Action;

Center for Health, Environment & Justice;

Citizen Action of New York;

Friends of the Earth;

Democracy for America;

NYH20;

Damascus Citizens for Sustainability;

United for Action;

WBAI-FM, NYC;

New York Residents Against Drilling;

WaterDefense;

FarmHearts; Chenango Delaware Otsego Gas Drilling Opposition Group;

Gas Drilling Awareness Coalition;

Brooklyn Food Coalition;

“Gasland”;

Sane Energy Project;

NY Permaculture Exchange;

WNY Drilling Defense;

No Frack NY;

The Village Independent Democrats;

Advocates for Morris;

New Yorkers for Clean Water Inc.;

NO Gas Pipeline;

FrackAlert, Inc.;

The Community Church of New York, Unitarian Universalist;

Action for Justice Committee, the Community Church of New York, Unitarian Universalist;

Westchester for Change;

Democracy for New York City;

People for a Healthy Environment;

New York Yearly Meeting, Religious Society of Friends;

Environmental Task Force;

Hopewell Junction Citizens for Clean Water;

Empire State Consumer Project;

Slow Food New York City;

STARK and Dryden Resource Awareness Coalition;

Hudson River Sloop, Clearwater Inc.;

Earth Day Network New York;

Chenango Community Action for Renewable Energy;

Gas Drilling Awareness for Cortland County;

NYC Network;

Huntington BC Action Coalition;

Coalition to Protect New York;

Moving in Congregations, Acting in Hope;

Clean Water New York;

Gray Panthers, NYC Network.

###

URGENT OPEN LETTER TO GOV. CUOMO

Thursday, June 30, 2011

An URGENT Open Letter to NYS Governor Andrew Cuomo

Actual posting time is 6:30 p.m. Thursday, June 30, 2011. Something is wrong with the blogger clock/calendar.

This posting is appearing in Alternet and other publications. Urgency dicatated that I post it online immediately so people can bombard Cuomo with calls and e-mails expressing their [fill in your own word: fury, disappointment, anguish, disgust, heartbreak, terror, determination to fight harder and elect people who will protect our rights to clean air, clean water, safe food supplies, decent communities, and our rights to NOT BE POISONED . . .]

Dear Governor Cuomo,

We just got word that you're lifting the fracking moratorium in the New York City and Syracuse watersheds. I'm almost apoplectic from shock, anger, grief, and terror.

A former farmer and trained environmentalist, researcher, and independent journalist, I have spent much of the last three years learning and writing about fracking. I am a cofounder of the Coalition to Protect New York, among other actively engaged organizations working to ban fracking in our state and elsewhere.

We do not trust the Department of Environmental Conservation to get things right on fracking. Even if it were a reliable and trustworthy agency, the DEC’s budget has been cut so drastically and its workforce decimated to the point that it’s virtually hamstrung.

We do not trust — nor should any sensible, informed citizen or legislator trust — corporate-bought politicians and corporate "scientists."

For the moment we must trust that you are not among that group and that you truly want to do what is right for New York State.

In these tough economic, energy, and environmental times it will take a visionary, forward-thinking leader to bring the state into the future with an innovative energy/jobs/climate-change-effects-lessening plan.

You could be that leader if you have the desire and political will to do so.

It appears you have decided to lift the moratorium for the state outside the New York City watershed (because Wall Street traders, corporate tycoons and big bankers live downstate) and Syracuse watershed (tossing a bone to the rest of the state, according to cynics), while throwing the rest of us to the wolves.

This means you think of the rest of the state’s residents and environment as expendable.

You may be committing political suicide.

Many millions of New Yorkers now know what is at stake with fracking, and more are coming to that understanding daily as they learn of its ills in other places.

That speaks to the dedication of my fellow antifracking activists, who are fighting an industry that can without blinking an eye drop $150 million or more yearly to hoodwink the public and lobby legislators with false propaganda. Their ads claim that “natural” gas is “clean, safe, domestic, and patriotic.” And that it’s an economic panacea for struggling workers whose jobs have been eliminated or sent abroad.

Which, as you surely know, are all false claims.

Governor, you should quickly reconsider lifting the moratorium. The only sensible, responsible, long-term response to the devastating practice of fracking (a response that would also greatly offset our economic woes) is to
1) immediately institute a statewide fracking ban (New Jersey’s legislature just passed one; it’s waiting for Governor Christie’s signature, which is probably not forthcoming; but you could be the first);
2) invest in wide-scale updating and reinforcing of infrastructures and in conservation/energy-efficiency rehabilitating existing public and private buildings and homes;
3) commit to the building and maintenance of long-term energy-efficient public transportation and codify mandatory greater fuel efficiency in all private and public large, small, agricultural, and industrial vehicles;
4) invest in research, development and implementation of renewable, sustainable neighborhood- and local-based energy systems, and write and enforce laws mandating the phase-out of all fossil-fuel based systems;
5) protect and keep public all drinking water supplies;
6) promote and foster healthful, organic agriculture and food distribution models; and
7) invest in public education programs about conservation, the reduction of energy consumption, and about renewable energy strategies.

Following such a plan would save money through conservation. It would reduce our need for and dependence on fossil fuels (which dependence, as you know, is unsustainable, even in the short term). It would also create plenty of safer, stabler, longer-term jobs, as the “green” sector expands with innovative new projects.

Perhaps most important, it would help stave off further hastening of catastrophic climate change and leave a legacy of forward-thinking and sustainability — rather than one of industrialization and ruination of lives, communities, and food and water supplies.

Fracking is the single most important issue facing New Yorkers. It will add water-pollution, air-pollution, and food toxicity illnesses, generate injuries to workers and others, and thereby increase our health care costs.

It will cause property damage and drain our communities of tax revenues that will need to be used to repair roads and bridges damaged by the thousand of trucks it takes to provision a frack well and remove the millions of gallons of contaminated waste generated by each well.

It contributes to greenhouse gases and global climate change and the increasingly commonplace whacky weather patterns we are seeing in New York and elsewhere. It will kill our tourism, outdoor adventuring, and agriculture and vineyards enterprises around the state—which would constitute economic suicide. Those industries combined bring in about $2.2 billion annually and provide 515,000 jobs (and will likely grow as neighboring Pennsylvania’s hunting, fishing, agriculture, and tourism sicken and die of fracking-related causes).

We must not allow the progress we have made these last few decades on the clean air/clean water/safe food to be wiped out via one destructive industry, nor allow our bucolic state to be turned into an industrial wasteland.

Because, mark my words, that is what fracking will do to New York should your permits go through.

New York is “Fracking Ground Zero.” People in fracked states are looking to us for leadership, begging New Yorkers to stop the madness before it takes hold here. They do not want us to be poisoned, and they also want us to then help them stop the industrialization and maybe help reverse some of the damages (although, alas, it is too late for many of these states, and huge swaths of land as well as people’s health and properties are beyond reclamation) of their communities.

Governor Cuomo, I urge you to be the leader New Yorkers need — and in whom they put their faith in when casting their votes.

Do not succumb to industry/Wall Street pressure. Do not put profits before our health. Do not gamble with our lives.

This is a make-or-break issue for me, my family, and the many organizations to which I belong and which I have founded or cofounded. We are making this the top priority in our lives and in our daily and many political actions. We feel we are fighting for our way of life — indeed, for our very lives. We want you to be equally committed to saving what is precious and irreplaceable.

Please invite us to consult with you if your information is leading you to lift the moratorium. We are informed. We are knowledgeable. We are farsighted.

We are taxpaying scientists, medical doctors and practitioners from many fields (oncology, pulmonology, pediatrics, obstetrics/gynecology, physiatry, endocrinology, and psychiatry), farmers, water quality specialists, hazardous materials experts, teachers, entrepreneurs, businesspeople, writers, artists, homeowners, renters, teens, college students, parents, grandparents, voters.

We will help you understand that fracking risks are far too great, too widespread, too permanent, too irremediable, too suicidal on so many fronts.

We are also motivated. There’s nothing that pulls people off their couches like a threat to their kids' health and their property values. We will not allow ourselves to be used as lab rats, cannon fodder, or "collateral damage."

So you can be sure that we will not stop fighting for a ban. We hope you will do the right thing and push for a total ban on fracking in New York State.

And Governor, please make the decision quickly. We have all lost countless hours to this fight — and countless hours of sleep to our deep and very real fears of what fracking will do to our future, and our children’s — and we would like to go back to being productive rather than reactive. Our reinvigoration and productivity will also help the troubled economy, about which you might be losing a lot of sleep as well.

We are also willing to sit on an advisory board to help you put the positive sustainability/conservation work mentioned above in place. Just ask us.

My family, friends, colleagues, fellow activists and I look forward to your response.

Signed,

Maura Stephens
Tioga County, NY

Maura Stephens is an independent journalist and cofounding member of the Coalition to Protect New York and other groups. She writes frequently about fracking and other environmental and energy issues. To contact New York Governor Andrew Cuomo: http://www.governor.ny.gov/contact/GovernorContactForm.php; (518) 474-8390. Let him know you're outraged and you think fracking is the most important issue facing us -- and what his actions will mean for your future votes and support. And then really get involved. Join an antifracking group and become an activist. Growing our numbers and our outrage will help fuel a mass movement -- the only force that is going to save everything we care about from greedy corporate destruction

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.