A member of the Catskill Citizens for Safe Energy, a staunchly anti-drilling organization, makes what may be to some a startling admission in a recent editorial: New York’s temporary town moratoriums on fracking to “study” the issue are no such thing–they are simply a way to buy time and build momentum for a permanent ban. Anti-drillers are quite happy to take the fight local–at the town board level–where legions of former hippies with no lives can inhabit town board meetings to agitate endlessly.
Pro-drillers have known this was the anti-drilling, anti-fossil fuel tactic all along–to first delay “temporarily” and then ban outright. Still, it’s nice to see them finally admit it in print:
In recent years, hydraulic fracturing has emerged as one of the most contentious issues in the state, but despite all the attention it’s received, Albany has failed to address the issue in a meaningful way.
The Legislature hasn’t passed a single bill to regulate the practice, and the DEC’s proposed rules and regulations have been bounced back to the department for revision or scrapped altogether. Since taking office, Gov. Cuomo has been acting like a deer in the headlights, incapable of making a decision that might offend either the (very rich and very powerful) gas corporations, or the (very visible and very vocal) opponents of fracking.
But while Albany has been in a state of paralysis, the center of power may have shifted, irreversibly, to an unlikely location: Town Hall. Over the past three years, municipalities in upstate New York have created a legal landscape that may eventually cause gas corporations to leave the state.
According to Fractracker Alliance, more than 150 towns have enacted bans or moratoria that prohibit fracking since 2011. Taken altogether, these ordinances now bar shale gas extraction on more than 20 percent of the land that sits atop the Marcellus Shale.
While almost two-thirds of these ordinances are moratoria that will expire after a year or two, that doesn’t mean these towns will be open once again for fracking. Ostensibly enacted to give towns “time to prepare” for fracking, moratoria often end up giving towns time to enact strict fracking prohibitions.
And the municipal anti-fracking movement shows no sign of slowing. A restrictive ordinance of one kind or another has been enacted at a rate of more than one a week for the past two years.
It’s too soon to accurately predict how many towns might eventually decide to reject fracking — either because it’s too dangerous, or because it’s incompatible with the character of the town, or because it will harm other economic sectors such as agriculture and tourism.
And all these local laws can have an impact beyond municipal borders. The infrastructure necessary to support gas extraction — the gathering lines, the pipelines and the endless convoys of heavy truck traffic — can only function efficiently if they are unimpeded by legal roadblocks. Gas corporations are used to playing on an open field, not stepping gingerly around a crazy quilt of local laws and ordinances that may vary from one town to the next.
But do municipalities really have the power to determine the fate of fracking? A few years ago, everyone assumed that local communities were powerless because the New York’s Environmental Conservation Law gives the state sole authority to regulate the industry. The law has been on the books for years, but it had never been tested in court.
Then a few enterprising attorneys took a closer look and concluded that while towns may not have a right to prescribe setbacks or casing requirements for gas wells, they still retain the right to restrict unwelcome activities through use laws and zoning ordinances.
Not surprisingly, the gas industry rejects this interpretation of the law and has sued to overturn fracking prohibitions, but without success. Four lower courts have upheld a town’s right to prohibit fracking, and last week a three-judge appellate panel unanimously reaffirmed the lower court decisions in two of these cases.
Even if the Legislature were to enact legislation to override municipal land use laws, it still wouldn’t be clear sailing for the gas industry. After all, “home rule” isn’t a right granted by legislation, it’s guaranteed by New York state’s Constitution.
Bruce Ferguson is a member of Catskill Citizens for Safe Energy, an all-volunteer grass-roots organization.*
*Middletown (NY) Times Record-Herald (May 13, 2013) – My View: Town Hall may be the bulwark against fracking