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Home Rule: How Communities Can Stand Up to Polluting Industries and Decide the Future of Their Towns

If you think that nothing can be done on the local level to combat big polluters like gas fracking companies, think again.
 
 
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The following is from Sabrina Artel's Trailer Talk: The Frack Talk Marcellus Shale Water Project.

In New York the debate about whether or not to allow gas drilling rages. Many strategies for controlling if, how, when and where this will happen is occurring throughout the state. In Sullivan County New York in the Catskill and Delaware River Valley Region, town boards and councils are brainstorming, debating and taking control of their municipalities. The Highland and Lumberland Committees on Energy and the Environmentformed last year to decide the fate of their towns. They sponsored a forum on February 19th that was held at the Eldred High School to talk about the options that municipalities have to protect themselves from being industrialized and how the power of Home Rule can be preserved. The speakers were Helen Slottje, an attorney with the Community Environmental Defense Councilbased in Ithaca, NY and Ben Price, the Projects Director from the Community Environmental Legal Defense Fund located in Chambersburg, PA.  

A gas drilling moratorium was passed in the town of Highlandon May 10th. The towns of Lumberland and Tusten are in the same Delaware River Region and are working together to inform themselves, resulting in the town boards revision of their comprehensive plans, including the revision of zoning ordinances that would state that it is inappropriate to have High Impact Land Use. The Moratorium Bill has just passed in the New York State Assembly and it's currently in the New York State Senate awaiting their decision, along with that of governor Cuomo.  

Carol Roig, a 14 year resident of Highland and one of the organizers of the Highland Concerned Citizens group, said, "We've been hearing that there's nothing we could do on the local level because the state had approved natural gas drilling for all zones but we started to find out that there are many legal opinions including from the New York Association of Townsthat said, in fact, the Environmental Conservation Plan that governs gas drilling does not preclude towns from using their land use powers to decide whether or not they want gas drilling or any high impact industrial use on their towns."  

This is a story of individuals speaking up when the gas corporations are attempting to control their hometowns and of individual becoming increasingly involved in their local government, collaborating with each other as they face drilling throughout the area.
 
The following is from Helen Slottje speaking to those in attendance at the forum on February 19th in Eldred, NY.  To hear the whole program, visit Trailer Talk.

Sabrina Artel:We're exploring the impact of natural gas drilling on New York's water resources and the issues being debated in our neighborhoods throughout the country and globally. What is guiding people's decisions about whether or not to lease their land for gas drilling? And at what point do the rights of the individual diminish in the face of the health of an entire area? What impact is this having not only on the communities in the shale regions, but also on the national dialogue and policy-making decisions around energy extraction?

What defines the American Dream, and how does it impact the decisions being made in our communities? Local culture, generations of history, and beloved homes can be lost when the oil and gas companies, intent on fossil fuel extraction, move into a new region. We're facing a complete shift in our region as the largest-ever concentration of gas lies in wait beneath our feet.

The Highland and Lumberland Concerned Citizen groups hosted a forum about the legal rights municipalities have in regulating drilling for natural gas. A couple hundred people were at the forum on February 19, which was held at the Eldred High School, and this audio is from Helen Slottje, who is the managing attorney of the Community Environmental Defense Council in Ithaca. She was followed by Ben Price, who is the Project Director of the Community Environmental Legal Defense Fun in Carlisle, Pennsylvania, so representatives from both New York and Pennsylvania shared what communities can do to regulate what happens in their community looking at home rule.

The forum was moderated by John Conway, who is the Sullivan County, New York, historian since 1993.

John Conway: Our first speaker is Helen Slottje, the managing attorney of Community Environmental Defense Council, a pro bono public interest law firm based in Ithaca, New York. The CEDC works with citizen groups and municipalities that want to retain their rural character in the face of threatened industrialization, especially that from gas drilling. The CEDC recently prepared a local law for a gas drilling task force in a town in Tompkins County in upstate New York that prohibits high-impact industrial uses. It is my honor this morning to introduce to you Helen Slottje.

Helen Slottje: So, hello. Thank you all for coming out here this morning. And many thanks for the organizers, Highland Concerned Citizens and their collaborators from across this region.

We're based in Ithaca, where my husband and I live, and where we want to be able to continue to live in peace and quiet and clean air, and that's why many of us are here today. We made specific choices to live in upstate New York, whether along the banks of the Delaware River, or on an organic farm, or in a cabin the middle of the woods. And the truth is that we want it to stay that way; that's why we came to live here.

And so, we're often accused of being NIMBYs, but the fact of the matter is, we don't want this in anyone's back yard -- not here, not in PA, not out west, and not in other countries. We believe, as I'm sure many of you do, too, that methane gas is a bridge to a very ugly future, and to a climate that's even more out of balance as we pump methane gas that's tens of times more potent than CO2 into the atmosphere.

I was recently on a panel with Sandra Steingraber and she had the most vivid description of the situation we're in that I have heard. And what she said went something like this -- with apologies to Sandra -- she's a much better poet than I am.

Imagine you have a family member who's addicted to alcohol. They've gone through all the beer, all the wine, and all the liquor, and they've even gone through the cough syrup and everything else they can find. Then they learn that buried under the foundation of the family home, stashed away during Prohibition, is a stash of alcohol, and that family member sets about buying explosives and dynamite, and they're going to blow up the floor of the house. Do you ask this person, "Pretty please," to try to slow down and maybe not wreck the house? Do you say, "Well, let's come up with some regulations and try to regulate the blowing up of the foundation of the house?" Or, do you say, "No. We're going to bar the stairs to the basement and you cannot blow up our home."

And so, that's why we're all here today -- to try to call this crazy plan off. So, we're looking for ways to cut off our addiction to fossil fuel, and so, in the absence of this addiction to fossil fuel, clearly this hare-brained scheme of methane gas extraction would be seen for what it is. But how do we go about saying "no"? What can we do?

I'm a New York lawyer, and I'm here today to talk about local land use law in the State of New York, and how we can use local laws to just say "no."

We're fortunate here in New York to have much stronger home rule protections than many other states, including Pennsylvania. And unlike Pennsylvania, we here in New York have the power to say "no" to a wide variety of land uses. But before I begin to bore you with the answers to all the legal questions that you had about land use planning in New York but were afraid to ask, let me address one other question: "What are we going to do if we don't focus on extracting methane gas?"

First, the answer to fossil fuel addiction is not to continue the extraction of fossil fuels. Only when we take some of the fossil fuel options off the table will we get serious about alternative energy sources, and not just wind or solar, but biomethane, district heating, geothermal, and options that we haven't even invented yet, because we keep subsidizing the oil and gas industry, convinced that we can't get along with out them. But in fact, they can't get along if they don't have something to sell us.

So, they're the ones scrambling to find more things that they can control and sell us, and they have no incentive to try to find energy that they cannot use to control the world economies and governments. And this choice they offer us of jobs or the environment -- often framed as the economy or the environment -- is a false choice. Healthy environments provide tremendous economic benefits, and a healthy environment leads to economic growth.

Degraded, polluted environments are not a pathway to economic prosperity -- in fact, the opposite. Poverty is the highest in the most polluted states, and research shows that the poor just didn't happen to wind up there; the poverty comes after the environmental devastation. We can look to PA and West Virginia and out west and see whether or not resource extraction has made those communities rich, or the corporations rich and the communities poor.

Which brings us back to the question that got us all out of bed and not doing the things we prefer to do, and instead focused on becoming educated activists and community leaders -- "What can we do?" So now, for the legal lecture.

So, in New York, localities derive their power from the State Constitution, and it's implementing legislation, the Municipal Home Rule Law, and the town, village or city law as appropriate. The New York State Constitution empowers local governments to adopt, amend and repeal zoning regulations, the power to perform comprehensive or other planning work, and the power to enact laws relating to the government, protection, order, health, safety and wellbeing of persons or property within their municipality. I've asked to be here this morning to talk about a land use approach that our law firm has developed that we believe will allow communities to preserve their rural character and local agriculture, tourism and sustainable economies in the face of threatened industrialization.

First, let me explain that I've spent the past two years working on gas drilling issues. When I went to my first gas drilling meeting, I had no particular opinion one way or the other about gas drilling. I certainly wasn't an environmentalist. But thousands of hours of research later, I must tell you that now I don't think that gas drilling is being done safely in our country at this time. You might have already guessed that. But, when I think about the most negative impacts from this looming industrialization, I think of the truck traffic and the associated destruction of our roads, of our enjoyment of our homes, and the negative impacts from all this diesel exhaust. And this is the impact that can most change our region, and has an impact that occurs even when everything goes right.

So, as you listen to me here today -- and just as importantly, when you listen to other advocates including those for the gas drilling companies, the regulatory partners, and landowner coalitions -- you need to know what is motivating that person. Our motivation and bias is that we are looking into this issue not from the perspective of, what can we do to help localities accommodate industry? What can we do to make sure that we don't pass a road use ordinance that industry says is too onerous? Or, what federal or state funding we might be able to find so we can build infrastructure or train our school children to take some of the most dangerous jobs that are out there?

Our firm is looking at this issue from, what can we do to say "no"? So, that's my bias -- our bias as a firm.

In fact, I'm proud of this bias, because given the way lawyers and law firms and corporations work, usually lawyers are only out looking for clients who can pay them. But how can an eagle, the night sky, or the Delaware River pay a lawyer's bill? So, with the help of grants and donations from regular people, we seek to give a voice to the environment and individual citizens who would not otherwise have the funds to work with a lawyer on environmental causes.

As we've investigated and researched the problems with industrialization and truck traffic and the toxic waste that the industry conveniently calls "brine" -- and we didn't just accept what industry and their regulatory partners and the landowner coalitions and all of their lawyers had to say as a starting point. When we simply started at the beginning and asked the question so many of you have asked, "Can they really just come into our town and do whatever they want -- put a drilling rig right next to my house or on a farmer's field, and just dump exploration and production waste in our county landfill? Haul toxic fluids in for recycling? Bang pipes next door all night long? Coat our homes with silica dust?"

We concluded that if a town used zoning to prohibit the land-based and community-based negative impacts of such activities, the answer was "no," they can't do that, at least not if the town has the political will to say "no" and follow certain procedures and a process in getting there.

"But surely, this can't be true," you might say. "We've been told for so long and by so many that there's nothing we can do." So, let's run through the objections that we hear when we talk about the proposal that towns can draft a zoning ordinance that protects the health, safety and welfare of its residents through the prohibition of high-impact industrial uses.

And when I talk today about our proposed law, I am speaking of this draft law that we prepared for a town gas drilling task force in Tompkins County, although a similar law can be drafted for other municipalities that's tailored to that community's comprehensive plan and community goals.

So first, some people have asked, "Does the town have the right to exclude or ban an industrial use -- any industrial us?" -- not just, say, gas drilling. These people have heard that towns are restricted from prohibiting certain uses, such as adult entertainment or housing for people with very limited means. And so, they wonder, do the use restrictions apply to banning industrial uses? They do not. Those restrictions are very limited and very specific in nature. They have to do with the protection of constitutional rights, specifically First Amendment rights such as free speech. But there is no question that exclusion of a specified industrial use is a proper and legitimate use of land use laws.

There's no dispute. It's what lawyers call "black letter law." In a 1974 case known as The Village of Belle Terre, a case which, by the way, involved a New York State zoning ordinance, the United States Supreme Court specifically stated the town had wide latitude to use its zoning laws to protect the public welfare. The court held, and I quote, "The concept of public welfare is broad and inclusive. The values that it represents are spiritual as well as aesthetic. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled ... a quiet place where yards are wide, people are few, and motor vehicles restricted, are legitimate guidelines in a land use project. This goal is a permissible one. The police power is ample to lay out zones for family values, use values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people."

And the New York Board of Appeals, the highest court in the state of New York, reached the same conclusion in a case called Gernatt Asphalt. And in Gernatt, a town had used zoning to ban mining, and the people who wanted to mine challenged the ban, saying it was unconstitutional, exclusionary zoning. The court -- again, the highest court in New York -- rejected this challenge. The court said, "We have never held that the exclusionary zoning test, which is intended to prevent a municipality from improperly keeping people out, also applies to prevent the exclusion of industrial uses. A municipality is not obliged to permit the exploitation of any or all of its natural resources within the town as a permitted use if limiting that use is a reasonable exercise of police power to prevent damage to the rights of others, and to promote the rights of the community as a whole." That's the holding of the New York Board of Appeals, again, the highest court in the state of New York.

Okay. Well then, isn't such a ban inconsistent with state or federal policy? And yes, the state and federal government have indicated broad support for natural gas extraction, buying industry's promotion of this fossil fuel as somehow green, and have gotten even the national environmental groups so desperate to stop the pillage of mountaintop removal that they're willing to make the sacrifices that methane gas entails. But I digress.

We are not a nation or state of a single policy. Let us not ignore there are many articulated state and federal policies that support the prohibition of high-impact industrial uses in rural areas. I'm only going to talk about two state policies.

Let's start with, say, the State Constitution. Our constitution provides, "The policy of the state shall be to conserve and protect its natural resources and scenic beauty, and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products.

"The legislature, in implementing this policy, shall include adequate provision for the abatement of air and water pollution, and of excessive and unnecessary noise, the protection of agricultural lands, wetlands and shorelines, and the development and regulation of water resources."

So, the proposed law would seem to be consistent with that.

Next, why don't we look at the Environmental Conservation Law, the very law that contains the article on oil, gas and solution mining. The policy of that entire law, and not just the section on gas drilling, provides, "The quality of our environment is fundamental to our concern for the quality of life. It is hereby declared to be the policy of the state of New York to conserve, improve and protect its natural resources and the environment, and to prevent, abate and control water, land and air pollution in order to enhance the health, safety and welfare of the people of the state, and their overall economic and social well-being.

"It shall further be the policy of this state to develop and manage the basic resources of water, land and air to the end that the state may fulfill its responsibility as trustee of the environment for present and future generations." Again, another policy that our proposed law is consistent with.

But one principle of preemption analysis, which is what we're really talking about when we discuss whether this local law would be against federal or state policy, is that when one is trying to determine whether a federal or state law or policy preempts, supersedes or -- put another way -- invalidates a local law, is that you don't go looking for implied preemption when the extent of the preemption is set forth expressly in the statute. And that makes sense. If the legislature has taken the time to tell us what is preempted and what isn't, we don't need to go hunting around looking for more insight into their intentions.

And if you go back to the Gernatt Asphalt case, the court there said exactly that.

And in another case in 2008, the Court of Appeals held that, interpreting an express preemption clause, it is unnecessary to consider the doctrines of implied or conflict preemption. Instead, the resolution turned solely upon the proper interpretation of the statutory language.

So, the Court of Appeals has gone on to say that, "The inconsistency of a local zoning law with a state law general applicability is, of course, insufficient to trigger preemption power, for if that were so the supersession authority granted by the Municipal Home Law Rule would be meaningless." So, that's all good news for us.

What does happen when local zoning law intersects with state law? In New York State, statutes that affect the zoning powers of local governments fall into three broad categories: cases where the local government gets no say. The state decides where it wants to put a particular use, and that's it; cases where the local government can say "yes" or "no" to the use, but once you say "yes," that's it; and situations where you can say, "yes, "no," or, "yes with these conditions."

And the legislature's pretty good about making it clear which category a law falls into. So, when they want to site facilities for the mentally disabled, they expressly withdraw the zoning power of the local government. And then there are ones such as laws regulating solid waste where the statutes specifically contemplate municipal zoning and regulation.

And then there are laws like the Mining Law, the Alcohol Beverage Control Law, and the Oil, Gas and Solution Mining Law, that allow a municipality to say "yes" or "no" to a use, but once you say "yes" you're prohibited from regulating the operation of process of the use. So, part of our proposed law deals with solid waste, and there's no issue with that under the state law, because municipalities are free to zone and regulate solid waste.

But other parts of our proposed law would pick up methane gas exploration and the disposal of their waste because of the high externalities that that industry currently inflicts on the communities around it. So, does this run afoul of the prohibitions in environmental conservation law? We don't think so. What that law says is that, "The provisions of this article shall supersede ..." ... okay, there's our express supersession language, so in this case we don't need to go around searching for more conflicts that put it out there. "The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the Oil, Gas and Solution Mining industries;" ... and then there's an exemption clause, an exception to that prohibition against regulation. And that reads, "but shall not supersede local government jurisdiction, overlook roads, or the rights of local governments under the Real Property Law."

So, a local law may regulate the Oil, Gas and Solution Mining industries if it's a law that regulates the roads or real property taxation and is otherwise within the power of the municipality.

The statute reads again, "The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the Oil, Gas and Solution Mining industries, but shall not supersede local government jurisdiction over local roads or the rights of local government under the Real Property Law."

Tthe question is, what does "relating to the regulation of the Oil, Gas and Solution Mining industries" mean? When does a local law relate to the regulation of this industry?

In answering this question, we can turn to our court, and in fact the New York courts have had occasion to interpret similar phrases, including in the Mining Statute, which previously read much like the Oil, Gas and Solution Mining Statute reads now.

So, what did the court decide? The Court of Appeals held that regulating an industry meant regulating its operations and processes, and did not mean local zoning aimed at limiting the externalities of a land use. And if you look at the legislative history of the statute to try to get some idea of what the intent of the legislature was, there's barely a mention of this particular section because, in fact, this was part of a larger bill that was aimed at increasing permitting fees so that the DEC could hire more regulators. I guess some things really never do change.

We don't think that this interpretation of the statute ... that the statute says what it means -- localities cannot regulate industry -- but that doesn't mean that they can't apply their local land use laws is particularly bold, visionary, clever, or creative ... sometimes I'd like to think so.

This is not a situation where we're trying to create new law attempting to overturn a law that we don't agree with, or even trying to distinguish a lower court holding that goes against what we're saying. It's a fact that there's not one single published New York State case that says municipalities cannot do what we suggest they can do -- to ban high-impact industrial uses.

So, what's the next objection? Okay, well, won't the landowners and the landowner coalitions, or their lessees, sue the town if we pass such an ordinance? Well, of course, anyone can sue anyone for practically anything, and in the land use context it's not unheard of for disgruntled landowners to sue a town when a town passes a zoning ordinance that they don't like, alleging that the law constitutes a taking of their property. But, in the first place, we don't believe that a prohibition on high-impact industrial uses is a compensable regulatory taking.

Certainly, when the government physically invades your property, or takes it and subjects it to its own use, the government is required to compensate you. But enacting regulations that limit a use only results in a compensable taking when the regulations so diminish the value of property that the owner is left with no or virtually no permitted use of the property -- no economic value.

In this case, the owner of the property is left with whatever the use of the property is now, which is presumably something other than high-impact industrial use. Maybe it's a residence; maybe it's a farm; but presumably it has value.

Furthermore, to the extent that the gas drilling industry -- at least as it's currently executed -- falls into this definition of high-impact industrial use, and would thus be prohibited, in New York the only right that's impaired is the right to explore, because in New York no one owns methane gas until it's been brought to the surface and captured. So, you don't own the gas in the first place. And furthermore, gas drilling is not completely excluded under the terms of this proposed ordinance. The only reason gas drilling falls into the definition of high-impact uses is the externalities that result on the community and surrounding properties given how industry currently operates. Property owners remain free to drill for oil and gas to the extent they can do so without imposing major traffic congestion on everyone else; produce deleterious substances that have to be disposed of elsewhere; and have other negative impacts on their neighbors.

Well, we like to think, "It's my property and I can do whatever I want." That's only true if you can do what you want without negatively impacting other property owners because, after all, they have the right to enjoy their property as well. No one has the right to conduct a nuisance. It's not a property right enjoyed by industry, so nothing's been taken. But still, you might say, "Well, even so, the town can get sued and would have to defend the lawsuit."

So, we built into the proposed law a requirement that an administrative challenge be brought before the town as a condition before bringing any lawsuit alleging any sort of taking. So, if a landowner were to claim, "This is an unconstitutional deprivation of my property rights, substantive due process, or equal protection," they have to bring a claim in front of the town. And both federal and state courts require that administrative remedies be exhausted prior to filing for judicial relief.

So, a town would not be in a position where it was blindsided by a court case seeking damages. A town would be in a position to evaluate the merits of a claimant's case and to pursue an appropriate course in advance of a court filing. In other words, a town would be in a position to control its own destiny as to whether to stand its ground or retreat. If it retreats at the administrative remedy stage, then there's no court case, and of course no damages.

In conclusion, we don't believe the legal strategy that we have outlined is particularly novel or out of the box. It doesn't involve challenging the holding of any published judicial decision, and there's absolutely no reported New York case at any level that says that what we're suggesting cannot or should not be done. Well, of course, no one can guarantee that a lawsuit will not be filed. We believe it is much more likely than not that a town would prevail in a lawsuit if one were brought challenging the law, and moreover there's this Administrative Remedy provision which should act to place a town in control of its own liability destiny should any real risk of a damage award arise.

I hope that we have addressed the concerns and questions that you may have about whether or not a proposed law that would prohibit high-impact industrial uses is a worthwhile approach in the first place, and that we can next turn to a discussion of what such a law would actually look like in towns like yours. Thank you very much.

Hear the rest of the program onTrailer Talk.

 

 

Sabrina Artel is the creator and host of Trailer Talk, stories from America's kitchen table. Her weekly radio show explores community engagement through conversations about culture, politics, the arts and the environment. To find out more about Trailer Talk's Frack Talk Marcellus Shale Water Project please visit Trailer Talk.
 
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