March 1, 2012 —
Recently there have been two important but very different legal developments on the two sides of the Delaware River. Both are related to the ability of municipalities to zone the location of natural gas drilling. Both have a significant potential to affect the health and welfare of the Upper Delaware Scenic and Recreational River.
The Upper Delaware Council (UDC), the body formed to administer the River Management Plan (RMP) for the river corridor, has said that modern techniques for natural gas extraction are a heavy industrial use. The RMP designates heavy industrial activity an incompatible use anywhere in the river corridor. The UDC has therefore held that keeping surface activities related to natural gas drilling out of the corridor is necessary to preserve the qualities for which the area was designated in the federal Wild and Scenic Rivers Act. But the RMP is written in such a way that that law is effected entirely through state and local government—and largely via zoning. And that means that the legal context provided by the states for such zoning is critical.
On the Pennsylvania side of the river, that context has been effectively destroyed by the passage of legislation which, incidental to imposing impact fees on natural gas drilling, creates a system of statewide rules that supersede local ordinances with regard to the location of drilling. Those rules allow gas drilling pretty much everywhere, at least as a conditional use. The state, in short, has rendered local municipalities impotent to implement the rules that could keep drilling out of the corridor. The townships are being forced into a position where they cannot conform with the RMP.
The Commonwealth of Pennsylvania signed on to the RMP. It has a delegate on the council. There is an executive order in effect that state agencies will comply with the plan. And yet, Pennsylvania has taken an action that disables UDC member townships from complying with the plan with respect to this heavy industrial use.
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.