March 17, 2011 —
What are land use rights, and who has them? These days it is usually the landowner planning to sell the gas in the shale under his land who claims this right, and he is justified. The right to do with your property as you please, in conformity with zoning laws, has a long history in this country and wide and justified support in this county.
But that right is not unqualified. Common law specifies that we all have the right to “quiet enjoyment” of our property. According to Wikepedia: “Nuisance is one of the oldest causes of action known to the common law, with cases framed in nuisance going back almost to the beginning of recorded case law. Nuisance signifies that the ‘right of quiet enjoyment’ is being disrupted to such a degree that a tort is being committed… A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else.” Zoning laws are meant to define the limitations.
Common law rights are amplified in the NYS Constitution: “The protection and promotion of the health of the inhabitants of the state are matters of public concern. . . . The legislature. . . shall include adequate provision for the abatement of air and water pollution and of excessive and unnecessary noise . . . . ”
If gas drilling comes to New York State, as most believe is inevitable, some landowners will get a windfall. The majority of residents don’t own enough land to be invited by landsmen to lease to the gas companies; some who do will choose not to participate. These folks may have to put up with their neighbors’ good fortune, at the least in the form of noise and light, but not forever.
But, we’ve all heard of cases where methane is brought up by the drilling process, contaminating water wells. The fracking process been accused of contaminating air as well as water and causing illness in people and animals. The gas companies deny it’s their fault but there are too many coincidences to ignore.
So there is a conflict of rights. But the common law rights seem to have been overridden. The federal government has given the gas companies a free pass on the Clean Water Act; and many believe that the laws of New York State don’t allow local municipalities to control anything but their roads. That leaves those who are afraid of becoming one of the victims of fracking with no clear legal path to protecting their rights. When it comes to gas drilling, it seems that not everyone’s land use rights are equal.
[Roy Tedoff is a resident of Hortonville, NY.]