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.
In a comment letter to the Delaware River Basin Commission, the Upper Delaware Council (UDC) has gone on record as saying that modern hydro-fracking is a heavy industrial use and, hence, specified by the RMP as incompatible. Thus it seems clear that they must require their member towns to adopt zoning ordinances that keep the activity out of the river corridor. The murky state of New York law has admittedly made this difficult for them, but we don’t see how that lets them off the hook for going with the best strategy available—and that seems to be the CEDC approach. The fact that the CEDC is a non-profit organization that does its work pro bono means that doing so should not entail huge expense.
If Cochecton should nevertheless decline to consider the CEDC approach, the next question is whether the UDC should recommend that its ordinance be deemed “substantially non-conforming.”
The word “substantially” is admittedly tricky here. It could be argued that unconventional gas drilling is only one of many activities, and that an ordinance that fails to protect against one thing cannot be described as substantially failing. But this is not just one activity among many. It is an activity that has the documented capacity to contaminate aquifers. It involves massive industrial installations and traffic. It is probably the single biggest threat to the integrity of the corridor, and those special qualities whose protection the Wild and Scenic River Act mandates, that we have seen in the history of the RMP.
And the problem goes beyond Cochecton itself. If the UDC gives a pass to an ordinance that fails to grapple with unconventional drilling, it sets a precedent for all member towns—including those in Pennsylvania, which currently have an acknowledged right to ban drilling in some zones. Such a precedent would be especially unfortunate if the passage of a law or the settlement of a court case subsequently make it unambiguously clear that New York State towns do have the capacity to zone the location of gas drilling.
We have a compromise to suggest, however, if Cochecton declines to consider the CEDC approach and the UDC nevertheless calls its ordinance “substantially conforming.” The UDC could issue two qualifying resolutions at the same time. One would say that Cochecton is only being deemed as conforming in deference to the unsettled state of New York law, and that Pennsylvania towns are still expected to ban heavy industrial uses, including gas drilling, in the corridor. The second would say that, at such time that New York law is clarified to confirm municipalities’ rights to restrict drilling, New York member towns would be expected to amend their ordinances accordingly.
The one thing that cannot be allowed is for any member town to pass an ordinance that makes no effort to keep unconventional drilling out of the corridor, and for the UDC to let it pass, without comment, as an acceptable precedent.