A tale of two states: now, what about the river corridor?
Although the UDC did send one letter to the governor when the bill was still being considered, backing up member towns that had sent letters opposing the act’s violation of home rule, the council has not specifically addressed the problem that the act is in violation of the state’s obligations to implement and uphold the Wild and Scenic River Act, via the RMP. And it’s time for pressure to be brought to bear on this issue. The state must either pass an amendment restricting horizontal hydrofracking on river corridor lands in Pennsylvania, or exempt river corridor towns from the pre-emption of their rights to zone their own land. Otherwise, it is not holding up the side of the bargain it agreed to in signing onto the RMP.
Prospects on the New York side of the river are a great deal brighter. Here, two judges in two separate cases have upheld towns’ rights to ban natural gas drilling within their borders. Although the cases will surely be appealed, the fact that the first two rulings confirms such home-rule rights radically changes the risk/reward assessment for towns that have been considering zoning changes—like Cochecton.
In our editorial “An Unacceptable Precedent” (June 30, 2011), we argued that the UDC should encourage towns like Cochecton—which has been conflicted about how to handle gas drilling in its zoning—to implement a ban on natural gas drilling at least in the river corridor zone. At the time, though, that was admittedly a hard position to press, given how muddy the legal situation was.
But times change, and the current legal reality is that New York State towns have the power to ban drilling from some or all zones. Appeals notwithstanding, at this point in time, the presumption must be that this right will be upheld. And the risk is tiny: with two rulings against them, no gas company is likely to start a new suit until it sees how the two already filed go forward. Accordingly, we would argue that it’s time for the UDC to get proactive with regard to natural gas bans in the river corridor zones of its member towns on the New York side. The matter is made especially urgent by the fact that both Governor Cuomo and Department of Environmental Conservation Commissioner Martens have been quoted as saying recently that a decision on hyrdrofracking in the state is only months away.
Pennsylvania and New York State appear to be headed in different directions with regard to natural gas drilling, but both pose challenges for the UDC. This activity is potentially the most serious threat ever posed to the river corridor, and it is to be hoped that the council rises to meet those challenges.