Fracking, Home Rule and NY's Environmental Future: Under the Surface With Tom Wilber

A three-year battle over jurisdictional control over the fracking industry ended on June 30 when the New York Court of Appeals upheld lower court decisions that cede control over where and if shale gas development can happen from state to local governments. Journalist Tom Wilber provides his analysis of the decision below. It first appeared on his blog, Shale Gas Review.

Tom Wilber will appear at Beacon Institute Thursday, September 18. More information here.

Tom Wilber will appear at Beacon Institute Thursday, September 18. More information here.

On Thursday, 9/18 at 7 pm, Tom, author of  Under the Surface: Fracking, Fortunes, and the Fate of the Marcellus Shale will discuss the status and future of shale gas development in New York State in a conversation with environmentalist John Cronin. The event will take place at the Institute’s Center for Environmental Innovation and Education (CEIE) at Denning’s Point in Beacon, NY.  Attendance is free. More information here.

Late last month, New York’s high court issued a ruling that put the debate over the merits and risks of shale gas development in the hands of local governments.  The much-anticipated ruling – a monumental victory for grassroots political action — settled a long-standing question regarding the state’s jurisdictional control over the matter. Yet it raised many other questions about how local governments will respond.

There are towns for drilling and towns against drilling. But much of the fight over where and to what extent shale gas development – including high volume hydraulic fracturing — will be a part of the New York landscape will play out in towns with no stated policy. Do communities that don’t want fracking need to actively pass a ban? Can communities that want fracking amend zoning laws to encourage it? What happens if they do neither?

These questions are predicated on a pending decision by Governor Andrew Cuomo on whether to allow fracking anywhere in the state. While the outcome of that remains anybody’s guess, we know from Cuomo’s past remarks that he favors a plan to begin issuing shale gas permits in towns with no local bans. These happen to be along the border with Pennsylvania, which also sit over the most viable parts of the Marcellus Shale. This dynamic becomes especially relevant to towns in this area – and there are many of them — with no comprehensive plan and nothing on the books specific to fracking.

One of these places is Vestal, where dozens of residents against fracking attended a town board meeting this week to urge elected officials to pass a local ban.

The reaction by Town Supervisor John Schaffer, as reported byBinghamtonHomepage.com, was not especially concrete. “Our town code says you can’t do it here to begin with, and I’ve told these people [anti-fracking activists] that over and over and over,” Schaffer said. He then added: “We’re aware of the recent Court of Appeals decision regarding home rule. While the decision permits the town to enact legislation that would ban fracking, it does not require us to ban it. According to the town board, we will carefully monitor this issue and will act when and if there’s an incident for us to do so.”

(In her blog The Marcellus Effect, Sue Heavenrich covers a similar controversty unfolding in Candor, NY.)

Some legal experts say that towns could – depending on wording and interpretation of local law — grant variances to gas companies to site wells in areas otherwise zoned against industrial use, which is just what supporters of gas development are hoping for and what opponents dread. Attorney Helen Slottje represented Dryden and Middlefield in their Home Rule victory. In a recent appearance on Capitol Press Room, Slottje pointed out that while the Court of Appeals ruling would make it more difficult for operators to drill in zoned areas, it would still be possible, depending on how a given town reacted to the ruling.

“There are in most zoning codes various exceptions for different uses that could be construed by a court to be like gas drilling sufficient to allow gas drilling to proceed,” she said. “The safest thing for a town to do is to pass a zoning amendment or stand alone law that makes it clear that gas drilling is not permitted in their town.”

Industry lawyer Tom West also raised that possibility. He told host Susan Arbetterhis clients would be “implementing a strategy to protect our investments,” but because the nature of the fight had been so tactical – like a chess game where each side was anticipating the other’s moves — he was “not at liberty to discuss that strategy.”

All this sounds suggestive and inconclusive because it is, at least until the matter is fully deliberated and acted upon at a town board level.

Some activists are already beginning to push the matter. Sue Rapp, a member of Vestal Residents for Safe Energy (VeRSE), characterized Vestal Supervisor Schaffer’s comment that the town would take a wait-and-see approach as “garbled messages not on point … When examined, his remarks convey nothing of substance on the issue of zoning regs/variances and gas drilling.”

The ambiguity can be maddening or inviting, depending on your stake in the debate, and it has provoked some thoughtful comments from readers on my recent postabout fallout from the Court of Appeals decision.

In response to a comment by Mary Sweeney, who pondered whether existing zoning laws would preclude drilling with no stated bans, fracking critic and policy analyst Stan Scobie elaborated on the undisclosed plan that West mentioned on Arbetter’s show. According to Scobie, West is organizing a campaign with certain towns over Marcellus shale zones to create policy – zoning overlays – that would maximize development of the play by creating the legal architecture to override zoning laws. Scobie writes:

Governor Cuomo and the DEC some time ago raised a difficult issue, namely,  fracking would perhaps be OK in those towns who “wish” to be fracked,  but  how would we know which ones they are? To address this the pro-drillers have crafted a “zoning overlay” strategy.

This plan would have each town modify their Comprehensive Plan, if they have one, to be somewhat fracking friendly, and then develop and legislate zoning overlays. These would, if passed, clearly identify the towns and areas in towns where fracking was OK. There would be no “frack me” resolutions passed quietly and quickly at Town Board meetings with zero attendance as seemed to be the case a couple of years ago.

I asked West in an email whether zoning laws already on the books – those that prohibit industrial operations in residential or other areas — effectively serve as “bans” to oil and gas. And of if so, can drilling supporters work around them? West responded:

Whether oil and gas activities are considered an industrial use, will be a municipality by municipality determination…  Much of the clarification will come over time.

In other words, much of where drilling is allowed will come down to interpretation of local zoning laws, and that interpretation will be made on a town by town basis by local leaders and their lawyers.

In short, the fight over drilling in New York is far from over. It continues on the state level, where activists like Walter Hang are leading a campaign to pressure Cuomo to withdraw the controversial policy review that is essential for it to go forward. And, pending that outcome, it continues on a local level, where towns will have to either craft policy clarifying how and if their zoning laws apply to gas drilling, or face the prospect of court challenges and the consequences when push comes to shove with money, leases, and passions on the line.

. . .

Tom Wilber’s Under the Surface, Fracking Fortunes and the Fate of the Marcellus Shale (Cornell University Press) was selected as a finalist in the 2013 New York Public Library’s Helen Bernstein Book Award for Excellence in Journalism. His career as a journalist encompasses more than 20 years in the newspaper business, including 17 years with the Binghamton Press & Sun-Bulletin, covering business, health, and environment beats. He has reported on shale gas development in New York and Pennsylvania since 2008.

Tom was among the first reporters to provide daily coverage of events in Dimock Pennsylvania, which have since become iconic of the national controversy over fracking. For that, he won top honors in Best of Gannett beat reporting in 2010. He left the newspaper in 2010 to write full time about shale gas development. He now tracks current events related to shale as development in his blog, Shale Gas Review. He has taught various journalism courses as an adjunct at Binghamton University.