Bolstering home rule in New York

Whether you are for or against natural gas drilling, the idea that state law and corporate policy should be able to supersede towns’ authority in governing land use when it comes to drilling activity within their borders is troublesome. In Pennsylvania, municipalities have made progress in being able to control their own backyards. In New York, however, the conventional wisdom, articulated recently by Town of Delaware board member Harold Roeder, seems to be that municipalities are helpless to resist the mandates of the state and the drilling corporations. But in fact, New Yorkers have a couple of strategies open to them that would put them in a very similar legal position to their neighbors in Pennsylvania.

In Damascus, PA, the planning board is working to devise an amended zoning ordinance that will stand up to state law and still give it some control over the siting of natural gas drilling infrastructure. Shohola, PA has requested—and been awarded—an Upper Delaware Council Technical Assistance Grant for a study to help Pennsylvania municipalities understand their options under state law, which gives towns some leeway to create zones in which natural gas drilling is either forbidden or permitted only under conditional-use review. And dramatically, the city council of Pittsburgh recently voted to prohibit fracking entirely within city limits, essentially throwing down a legal gauntlet that may further expand the home-rule prerogatives of municipalities on the Pennsylvania side of the river.

The law in New York is much less clear with regard to home rule and the degree to which it is overridden by the state oil and gas act. To get past this roadblock, one of two things will be necessary: either a piece of legislation must be passed that will plainly establish municipalities’ home-rule rights over gas drilling, or some municipality in New York has to go ahead and try to enforce a zoning restriction on a drilling company, and be willing to take the case up to the state Supreme Court when it is challenged (as it surely would be). We believe it’s worth pursuing both strategies simultaneously.

With regard to legislation, the good news is that both our state senator, John Bonacic, and our state assemblywoman, Aileen Gunther, have co-sponsored bills designed to make it clear that New York municipalities are entitled to control where drilling may or may not be allowed, even though they may not interfere with the state’s regulation of how it is performed. The bad news is that the bills (A10633 in the assembly and S8043 in the senate) never got further than committee, and expire with this year’s legislative session. They will have to be reintroduced next year (they would presumably be given new numbers). The residents who live over the Marcellus Shale need to be aware of this legislative effort and start pushing aggressively for the bills to be reintroduced and passed.

With regard to drafting current regulations, we have long believed that New York State law, even as currently written, can be interpreted as giving municipalities the power to control some aspects of gas drilling, like location—though not the manner in which it is done (see www.riverreporter.com/issues/10-02-11/editorial.shtml ). Here, as in Pennsylvania, this can be seen as part of their traditional home-rule prerogative to oversee the way land is used within township borders via zoning.

The Town of Ulysses in Tompkins County is apparently already writing an ordinance based on this interpretation of the law with the help of the Community Environmental Legal Defense Fund (CELDF). In fact, CELDF has sent out an email offering free assistance to any group that wants to have a local law banning fracking adopted in its municipality. (Just send an email to BenPrice@celdf.org including your name, phone number, address, and e-mail in the body, and the name of your municipality and county in the subject line.) If the new legislation doesn’t pass, cases like these can serve to test the constitutionality of restricting the location of drilling under current law. And if it does pass, towns like Ulysses will already have the relevant ordinances in place and be ready to go.

What is at stake here is not whether to drill or not to drill, but the principle of home rule. Who has say over our land? Local residents and their elected officials? Or big out-of-state corporations, enabled by pre-emptive state law? Those who like the former answer better should support the drafting of local ordinances regarding the location of gas drilling, and contact their representatives and urge them to reintroduce A10633 and S8043 and press them to fruition.

Also in this issue:

• Gas drilling and legal suits

(Not a scientific poll)

Last week's results:

Do you find it easy to be thankful?

Yes: 68.18%

Sometimes yes, sometimes no: 22.73%

No: 9.09%

Dr. Punnybone

Roadside Attraction