A pair of court decisions this month should spur local towns to action in banning hydrofracking.
Two years ago, we wrote on this page to advocate for a statewide ban on hydraulic fracturing. We believed then as we do now that government resources that will be spent on issuing drilling permits and enforcing rules could be better spent on encouraging clean and renewable energy sources, like solar or wind power, or on getting New Yorkers to simply consume less energy.
Back then, the governor was riding a tide of popularity and favored development of the Marcellus Shale to “provide a badly needed boost to the economy of the Southern Tier.”
We cited work by Susan Christopherson, an economic geographer and professor at Cornell University, who studied what happened in other areas with shale gas drilling, most notable nearby Pennsylvania, and found claims of job creation exaggerated. Out-of-state experts get the high-paying jobs while jobs for locals tend to be part-time, short-term, and low paying.
More troubling, the boom can add to public costs — for everything from schools to police and emergency workers — that may leave municipalities worse off in the long run.
The governor went so far as to assert that many environmentalists agreed on the importance of producing domestic natural gas to reduce reliance on more damaging coal.
But natural gas is not “clean” in the sense that solar or wind energy is clean. With hydraulic fracturing, gas is freed by injecting water mixed with chemicals and sand at high pressure into wells to fracture the rock. A congressional investigation in 2011 concluded that oil and gas companies had injected over 32 million gallons of diesel fuel or hydraulic fracturing fluids containing diesel fuel into wells in 19 states between 2005 and 2009.
None of them sought the required permits for the method, which is a violation of the Safe Drinking Water Act. A 2004 report from the federal Environmental Protection Agency found that the use of diesel fuel in fracturing fluids posed the greatest threat to underground sources of drinking water since it contains toxins like benzene, toluene, ethylbenzene, and xylene. Benzene is recognized as a human carcinogen, causing cancer, by the Department of Health and Human Services, the International Agency for Research on Cancer, and the EPA. Chronic exposure to toluene, ethylbenzene, or xylenes also can damage the central nervous system, liver, and kidneys.
In addition to these toxins, the drilling produces air and noise pollution and truck traffic that can harm the quality of living and jeopardize tourism. Beyond that, the specter of drilling has the potential to bitterly divide communities as some seek profits by leasing their land while others oppose the drilling.
For these reasons, municipalities, particularly those in the Southern Tier, which lie over the Marcellus Shale, began passing bans on fracking. The Marcellus Shale, which holds pockets of natural gas, was formed almost 400 million years ago and extends from West Virginia to New York. It is buried as deep as 7,000 feet in some parts and, near the town of Marcellus, N.Y., for which it is named, it is exposed. Southwestern Albany County, including the Helderberg Hilltowns and New Scotland, also lie on the Marcellus Shale formation.
The gas companies were not deterred by the municipal bans. They proceeded to lease and buy land. They said the bans wouldn’t hold up in court, asserting that local zoning ordinances would be preempted by the state’s Oil, Gas and Solution Mining Law.
They were wrong.
This May, the Appellate Division, Third Judicial Department — the middle level in the state’s three-tiered court system — ruled that towns can ban gas drilling within their borders. Both decisions were unanimous by the four-judge panel, so the gas companies bringing the suits now need permission to have the cases heard by the state’s top court, the Court of Appeals. The top court hears cases that set precedent or clarify the law.
In June 2011, wrote Karen Peters, the presiding judge in both cases, the town of Middlefield in Otsego County enacted a new zoning law which, among other things, categorized all oil, gas, and solution mining as prohibited land uses within the town. Cooperstown Holstein Corporation, which owns oil and gas leases in Middlefield, sued, resulting in a judgment dismissing the complaint and declaring the local zoning law was valid and not preempted by the state’s mining law.
Similarly, in a related case, Norse Energy Corporation USA had sued the town of Dryden in Tompkins County over its zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum.
Peters wrote that the New York Constitution grants “every local government [the] power to adopt and amend local laws not inconsistent with the provisions of [the] constitution or any general law relating to its property, affairs or government.”
She noted, though, that the doctrine of preemption “represents a fundamental limitation on home rule powers” and cited the supersession clause in the mining law that “shall supersede all local laws or ordinances relating to the regulations of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments…”
Tracing the evolution of the state law and its several amendments, Peters stresses that the legislature’s intention “was to insure uniform statewide standards and procedures” to increase efficiency and minimize waste, eliminating “inconsistent local regulation that impeded that goal.” She notes that the legislature “clearly acknowledged that promotion and regulation were considered separate and distinct activities,” as the Energy Office was to promote and the Department of Environmental Conservation was to regulate.
She writes that the law had no intention of usurping “the authority traditionally delegated to municipalities to establish permissible and prohibited uses of land within their jurisdictions.”
Indeed, Peters concludes, the policy of the state’s mining law explicitly seeks to protect the rights of “all persons including landowners and the general public” — not just the owners of oil and gas properties.
Peters says that is “a goal which is realized when individual municipalities can determine whether drilling activities are appropriate for their respective communities.”
We admire the court’s nuanced decision, not just because it values home rule, but because it teases out the intent of the state law — to minimize waste as opposed to usurping local land-use authority — and concludes with the need to protect all people.
We applaud the local towns that have, in the last two years, undertaken studies to consider the effects of hydrofracking. Berne’s committee presented a report in August, outlining problems ranging from increased noise and traffic to threats to clean water and air — and recommended local laws to prohibit hydrofracking. Rensselaerville’s committee did a thorough investigation and drafted an appropriate model for a local law in Rensselaerville. Two years ago, the Knox Planning Board drafted an ordinance to ban hydrofracking based on one from the town of Ulysses in Tompkins County; it did not specifically ban hydrofracking for fear the ban would be superseded by state law, but prohibited the use of a staging facility.
With the recent Appellate Division rulings, we exhort our towns to craft similar laws and, most importantly, to adopt them.
Westerlo Town Board members received a report last week from a committee that has studied hydrofracking, and the board plans to put the issue to public vote. We urge instead the elected board take a leadership role and efficiently pass legislation.
Guilderland passed a ban on hydrofracking last year without in-depth study. Little was called for since the town does not sit on Marcellus Shale. New Scotland, part of which sits on the shale, has fielded no resolutions on fracking.
Our towns should learn from the examples set by Dryden and Middlefield. While the state continues to delay approval for hydrofracking regulations, there is a window of opportunity for towns to act.
Municipalities must use the power of home rule to protect their citizens from the poison that could pollute for generations to come.