(10/06/11) New York's proposed regulations for the drilling technique known as "hydro-fracking" are currently in the public comment stage. The Department of Envitronmental Conservation has scheduled four public hearings will be held in November, three in the Marcellus shale region and one in New York City.
Environmental groups want more time for comment. And they'd also like public hearings in the Utica Shale area, which may be the next region slated for drilling.
As the state process advances, some communities are moving to make their towns 'off-limits' to the drillers. The "local control" tactic is being watched closely, particularly the Town of Dryden, where a test case is brewing. Our story comes from David Chanatry with the New York Reporting Project at Utica College.
On a rainy night in early September, more than 100 people packed a firehouse
in the town of Dryden, NY for a public meeting about
hydro-fracking. It was mostly an anti-fracking crowd, and Chip Northrup,
a former oil company executive turned anti-fracking activist, was preaching to
the converted.
“You can’t depend on the kindness of Texans to repair your roads.”
Dryden is one of the growing number of municipalities around the state that
have passed moratoriums or outright bans on the controversial drilling method.
Town Supervisor Mary Anne Sumner says they have simply clarified existing
zoning rules that forbid heavy industry.
“All our zoning since we’ve had zoning has never allowed heavy industrial
uses. We consider it to be in conflict with our quiet, rural, you know, way of
life here. So that’s the rationale. We’re allowed to regulate how our land is
used. We have never allowed heavy industrial uses and we’re not gonna start now.”
The state’s environmental conservation law gives the authority to regulate
the oil and gas industry to the DEC. But Dryden and other towns are
saying they’re not regulating the way the industry operates—they’re not
allowing drilling in the first place.
That’s argument doesn’t make sense to Henry Kramer. He’s with the landowners
group the Dryden Safe Energy Coalition.
“The rational they are using is that although they do not have the right to
regulate fracking in New York State, they have the right to ban it. We find that
completely illogical and not in keeping with state law.”
Environmental lawyer Helen Slottje has been pushing the land use
strategy, advising dozens of communities in New York, including Dryden,
that they can use zoning to keep gas drilling out.
“We use that land use authority to encourage towns to be very explicit in what
they do or do not want. Most comprehensive plans we look at talk about
preserving rural character and that people have chosen to live in these
communities for very specific reasons, wanting a certain quality of life.”
Dryden’s ban is now being challenged by a Colorado company in a lawsuit
that’s being closely watched around the state. Anschutz Exploration has
invested five point one million dollars to drill on more than 22 thousand acres
of land here. Anschutz claims the environmental conservation law is on
its side because of a provision saying it “supersedes” all related local laws
except those regarding roads and property taxes.
The purpose of that provision, says John Holko of the Independent Oil and
Gas Association of New York, was to create consistent and tough regulations
across the state.
“One of the reasons the oil and gas law is written the way it is in New York
State is because it is very technical. The state has the people, personnel and
knowledge to basically regulate it. To do it at a local level would be very,
very difficult.”
That clause may be the industry’s ticket to drill even if townspeople don’t
want it. These two competing interpretations of law seemed destined
for a court fight, and Anschutz and Dryden may be the test case that resolves
the issue. Professor John Nolon of the Land Use Law Center at Pace
University says there may be a precedent in an earlier decision about mining.
“This exact dilemma came up when local governments began to regulate gravel
mining and sand extraction. Turns out the ECL law has a similar provision
superseding ability to regulate operations. The courts left intact their
ability to determine where under zoning gravel mines could be placed.”
That decision would make perfect sense to Helen Slottje, the lawyer
advocating drilling bans based on zoning.
“What’s the point of saying, we’re gonna regulate whether I can put a hair
salon in my house or how big my shed is, but you can put a 5-acre wellpad next
to my house. That just complete takes away every aspect of a community’s right
to self-determination.”
For its part, the DEC says that when reviewing drilling applications, it
will take into account whether they’re consistent with local land use, planning
and zoning laws. No drilling permits are expected to be issued until next
year at the earliest.
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