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An unacceptable precedent

June 30, 2011

The Town of Cochecton is coming to the end of its comprehensive plan and zoning rewrite process. As noted in our March 3 editorial “Needed: a policy,” it has elected to handle the issue of gas drilling by ignoring it. Unfortunately, for at least one part of the town—the Upper Delaware Scenic and Recreational River corridor—that’s just not good enough.

And there is an alternative.

The Town of Tusten is also coming to the end of its zoning rewrite, and, with the help of the Community Environmental Defense Council (CEDC), it has essentially run a clinic over the past few months in how to construct state-of-the-art land-use laws in the State of New York with regard to heavy industrial uses. The Town of Lumberland, which was in fact the first in the area to invite the CEDC to give a presentation, and the Town of Highland are engaged in the same process. We would hope that Cochecton would be willing to take a look at their example. Indeed, we think it’s the only way that they can produce something that can be regarded as conforming with the requirements of the River Management Plan (RMP).

At issue is a clause in New York State environmental law that, for some time, conventional wisdom took as forbidding municipalities from placing any restrictions on gas drilling through zoning. Conventional wisdom, however, is shifting, both in the form of opinions from legal experts such as the Albany firm of Whiteman, Osterman and Hanna (which also happens to be the consulting firm for Sullivan’s Multi-Municipal Task Force) as well as the CEDC. Towns cannot control how drilling is done, but they can still regulate land use for purposes including the protection of the health, safety and welfare of their citizens. Should they define a class of uses—such as high-impact industrial use—that threatens these values, they can prohibit said uses. To whatever extent unconventional drilling practices meet those definitions, it would be prohibited in the zones in question.

Member towns must follow existing law, as we all must.

"The Constitution of New York State limits municipal authority to only those specific aspects of law that have been granted by the State — and municipalities cannot go beyond those limits. The State Legislature has vested the NYS DEC with the exclusive authority to regulate all facets of oil and natural gas exploration, drilling, completion and production. The Legislature codified the laws pertaining to natural gas drilling as part of the Oil, Gas and Solution Mining Law as set forth in Article 23 of the ECL.

Section 23-0303(2) of the ECL specifically provides that: “[t]he 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 governments under the real property tax law.” (Emphasis Added).

Based on 23-0303(2), local municipalities cannot regulate, limit, or ban oil and natural gas production activities; to do so would be to violate the Constitutional authority granted to local municipalities and the pre-emption doctine that exists in New York law.The Legislature initially left 2 areas open to local regulation: road use and taxation. However, taxation was later delegated to the New York State Department of Taxation and Fianince through the Office of Real Property Tax Services. Section 594 of the New York State Real Property Tax Law specifically supersedes local laws relating to the taxation of oil and gas within the State.

Consequently, the only remaing aspect of local law relating to oil and natural gas activities that can be subject to local regulation is where it impacts roadways. There is case law specifically addressing the preemption doctrine and circumstances where a local municipality enacted a local law relating to the regulation of oil or natural gas development."

Read the entire blog with an open mind. This excerpt was taken from:

Luckily, not all Pa townships

are part of the UDC and the Boondoggle of the Delaware. Make enough laws in the USA and China will get the last of manufacturing. Our friends that make laws against everything will wonder what the hell happened.

It is a tough job

but, somebody should inform the natural fellow that the national companies fled to China years ago, taking manufacturing away to the nations that have no environmental laws, and pay people a dollar a day. That is the modus operandi of the companies that natural seems to love and respect, and would like to establish in the United States.

It might also be a good thing to inform him that shale gas extraction is...not manufacturing. Resource extraction is a third world economic model that usually serves despots and autocratic governments, and...the multinational oil and gas industry.

Nero fiddled while Rome burned. Natural wants to collect royalties, and drink beer down at the "watering hole" (with his flying pigs?), while the world burns.

Other than that, I'm sure he's a nice guy.

good points

It is ironic how pro-gas folks tout "economic benefits" from an industry that is already symptomatic of our problems as a nation- shipping our raw materials (wood, grain, coal, metal ores, etc.) elsewhere for others to manufacture into useful things for themselves, or to ship back over and sell back to us. Other than gas lease fees and royalties to certain individuals, who may or may not even stay in the area post-industrialization, this is no model for a strong economic future here.

You fellows babble

the standard liberal lines. You make so many laws that prohibit industry that China gets it all as you do not want any dust, dirt, noise, or risk. You are the problem with the economy, not the cure.

The coward of Babel

I did not babble, liberal lines, or conservative squares, but I did, once upon a time, co-found a business, and I worked at it for 30 years, and it eventually employed 35 people. What have you done, oh, natural, that contributed, let alone cured, any economy? What do you "make", or, "manufacture"?

This is about the safety of shale gas extraction, not your rant, "I want, I want, I want, so get out of my way!"

Certain people create, natural. What do you do, own property?
Extraction is not creation, nor is it manufacturing. It is extraction, and when it comes to fossil fuel extraction and burning, the world will suffer more and more consequences, as a result. How "too late" is it? I don't know, but only you, and your compatriots in selfishness, plead ignorance, and denial. Good luck to us all, natural, we certainly need it.

Just read what you write.

There is little anyone can say that is as effective as what you write in showing just how far from reality you are. Gas drilling is coming to a street near you. Learn to work with it. It is inevitable. Hissy fits will certainly not prevent it.

It is said that

Death and taxes are inevitable.

I know inevitable, Mr. Dole, and shale gas extraction, is not inevitable.

There will be lawsuits, though, that is probably inevitable.

Bob, get a life.

Lawsuits are inevitable

because property owners will fight for their rights and obstructionists will fight to obstruct. That is what they do. This will not end anytime soon.

You have to love

how when people like this talk about and claim to "champion" property rights, they never make forthright mention or specify that they are only talking about "their" property rights, as if not mentioning that will somehow fool everyone into thinking they have the common good or their neighbors' property rights at heart...

Actually, we all agree.

The neighbors all feel the same. You speak for your neighbors and TheNatural will speak for his. We want gas drilling.

So once again

you use one small specific example to try to force a broad generality on everyone.

I love it when you always prove my points.