However, landowners and supporters of hydro-fracking say there will be lawsuits against towns over whether they can stop residents from selling mineral rights without compensation. The Innovation Trail's Matt Richmond reports on the two Ithaca lawyers whose work laid the groundwork for those drilling bans, and on the opposition that's now growing.
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Before moving to Ithaca in 1999, Helen and David Slottje were real estate lawyers at a firm in Boston. Now middle-aged, Helen says they came to upstate New York to get away from the world of corporate law and to work with her brother-in-law’s small company.
“You know, bucolic upstate New York, family company, you know, a switch from big city corporate practice to sort of small town nice, bucolic existence,” she said. But slowly she got pulled into a more hectic world, the world of local people opposed to hydraulic fracturing. It all started when the Slottjes went looking for a farmhouse for David’s brother. Everywhere they went, the sellers had leased their mineral rights to an oil and gas company.
“And the real estate brokers, 'oh, don’t worry, everyone around here has got a gas lease. It’s really nothing to worry about.' And David, having practiced law in Texas, was like, 'there’s no such thing as an insignificant, don’t-worry-about-it gas lease,'” said Helen. So they started worrying about it. Helen joined an e-mail list with people organizing against fracking in New York, and then she took up a fight against an industry project in Chemung County.
Two years ago, Helen started working with the Tompkins County Council of Governments as it prepared for drilling in the area. She said, "David and I could work on what sort of local laws towns might pass. So we got started on that but with the real focus on lighting or noise laws or dust laws, air pollution laws, but a very important part of that question was, what does regulate mean?”
Under New York law, the state Department of Environmental Conservation is given the sole authority to regulate the oil and gas industry, with only a couple of exceptions. That means towns can’t say how the industry operates within their borders; that power resides with the state.
The rationale behind the law is to make things easier for industry by avoiding a patchwork of local regulations across the state. So the Slottjes figured that towns could adopt a single law, in the form of a ban, and get around that problem. Helen said, “It was too complicated to have all these different layers of local regulation and they could do this here, they could do that there, well do they understand no? Like, is that too complicated for the gas companies?” When the Slottjes realized that was the course to take, they wrote a legal rationale and model zoning laws that have spread across the state.
Today, their Ithaca office is two desks squeezed into the bit of open space that isn’t taken up by stacks and stacks of paper. For each of the 80 or so towns they’ve worked with, they go through the zoning code and each town’s master plans. They’ll write a draft with the proposed zoning changes. When invited, the Slottjes speak at town board meetings. Helen said, “They schedule town boards on Saturdays and Sundays now, special meetings so they can get us, and I mean so we work seven days a week, might have taken a day or two here or there over the past year.”
The Slottjes work for towns for free but receive outside grant money to pay for their work. They have been criticized by landowner’s groups for receiving money from the Ithaca-based Park Foundation, which bankrolls many anti-fracking groups.
Tom Shepstone is the Marcellus campaign director for the industry-funded website Energy in Depth. He criticizes the Slottjes for saying they are working pro bono when their non-profit, Community Environmental Defense Council, receives grant money. Shepstone said, “Suppose that we marched into a community and said we’re going to help you write a law that provides for natural gas drilling throughout your community without restriction and so on and so forth and we're going to advise you and we’re going to do it on a pro bono basis. Everybody will look at us and say, what, are you kidding?”
According to Shepstone, officials should be listening to their town attorneys, not the Slottjes, when considering new laws. “But in this case what they’re doing, what we see in many communities, is they’re coming and essentially substituting for the local attorney, the local attorney is relegated to the background,” he said.
Landowners and people from Shepstone’s organization go to many of the meetings where the Slottjes speak. They film the talks and write rebuttals. All this opposition hasn’t caused the Slottjes to seek a lower profile. In fact, says Helen, it’s kept her going. She said, “These days I think I would not have done my job; if they haven’t attacked us a couple each week, I must be doing something wrong."
Scott Kurkoski is the lawyer for the Joint Landowners Coalition of New York and represents a Middlefield landowner suing over that town’s drilling ban. “I have some serious concerns about what David and Helen Slottje are doing. They in many cases are trying to convince towns that this is fine,” he said. "I'm not sure the towns understand what the Slottjes are getting them into.” Kurkoski says these small towns could stand to lose millions in legal fees and landowner compensation.
David Slottje doesn’t usually speak to the press; that’s Helen’s job. But during an interview at a coffee shop in Ithaca, he shared his plans for the future and said, “I wish that wasn’t the case, but if you look at the history of resource extraction in this country, whether you’re talking about mountaintop coal removal or any of these things, these guys don’t give up. There’s money to be made and they’re going to keep going until they’re kicked in the butt out of town. And that’s what we’re trying to do is try to kick them in the butt out of town.”
It’s not clear yet that their work will hold. Both cases involving the local bans are under appeal and the bans could still be thrown out. Also, everywhere in New York that the Slottjes go, the opposition to their work is getting louder.