After Two Towns Beat the Fracking Industry in a Top State Court, Can Others Follow?​

Until recently, few people outside New York had heard of Dryden and Middlefield. But these two towns are now on the lips of environmental activists everywhere as they’ve become part of the battle cry against hydrofracking.​
New York’s highest court issued a 5-2 decision upholding the legal theory called "municipal home rule" that has supported scores of municipal bans on oil and gas production in the state. Dryden and Middlefield's cases were the first to reach the state's Court of Appeals. The two upstate communities were being sued by large energy corporations that insisted they had a right to frack within their jurisdictions although both towns had zoning laws in place that prohibited some of the practices involved in hydrofracking.​
This decision has broad legal implications, not only for other towns in the state, but for municipalities across the U.S. that are trying to prohibit fracking. While the ruling holds no legal precedent outside New York, it's not uncommon for regional and state courts to reference legal proceedings in other states when handing down decisions.​

“This is a victory for local control,” say Linda Lavine, a Dryden Town Board member. “It is a victory for liberals and conservatives of all sorts. It is what democracy is all about.”​

At issue in the case was whether the two towns had the right, under New York's home rule laws — which allow municipalities the ultimate authority regarding land use — to use existing zoning laws to limit industry in the town. The plaintiffs, notably the multi-billion-dollar Anchutz Exploration Corporation, insisted that state regulations on energy extraction superseded any town zoning regulations that would either limit or effectively ban an industry from operating there.​

But the court backed Dryden, and the opinion was even written by Judge Victoria A. Graffeo, a conservative who was appointed by George Pataki, the state’s former Republican governor. The New York court considered the case to go beyond hydrofracking to explore the issue of whether the state’s villages, towns and cities have the right to enforce land use, and whether the state has the power to invalidate zoning laws passed by the towns.​

“At the heart of these cases,” wrote Graffeo in her opinion, “lies the relationship between the State and its local government subdivisions, and their respective exercise of legislative power. These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits.”​

As this case about municipal rights is settled in New York, the only question left is whether Gov. Andrew Cuomo will make a six-year old state moratorium on new hydrofracking operations permanent. Political observers say Cuomo will wait until after the 2014 gubernatorial election to do so.​

While Cuomo has taken progressive stances on a few issues such as marriage equality and gun control during his first term, he has done so only when public opinion is heavily weighted to the left. Mostly, he introduces or folds to centrist to right-wing positions on issues such as corporate taxes, charter schools and marijuana reform. But as New Yorkers are almost evenly split on hydrofracking (New York City and upstate voters favor a ban, while suburban New York voters don’t) Cuomo has tiptoed around this issue as a clear mandate does not exist to provide him enough political cover in either direction.​

Cuomo has told New Yorkers that he will wait for the state Health Department’s review of potential health risks associated with fracking to make a decision, but this review has gone on for nearly two years. Emily Wurth, water program director at Food & Water Watch,​​ notes that Cuomo is being relatively careful among governors on this issue, despite frustrations that many in the state have with what appear to be delay tactics.​

“Cuomo and [Maryland’s Martin] O’Malley are notable, as they’re being cautious weighing the options,” says Wurth. “O’Malley gave an executive order stopping fracking, but now we’re waiting on a commission he appointed to give him their recommendation on it,” she notes.​

In other states where hydrofracking or sand-oil extraction is either taking place or being considered, governors either tend to side with the industry or are mostly silent and ineffectual, as they do not want to appear anti-business when local economies still seem fragile. They're also keenly aware of the energy industry's political weight, knowing that the vast amounts of money it spends can tip the political balance in a state.​

“The oil and gas industry huge influence over elected officials in the states,” says Wurth. “They’ve got a lot of money that they dedicate to lobbying, as well as a lot that they give to political campaigns. Money has a big impact on the political process.​”​

In California, Gov. Jerry Brown has resisted efforts to ban hydrofracking in the state, angering many progressive lawmakers and environmentalists. In Colorado, Democratic Gov. John Hickenlooper — who once worked in the oil and gas industry and leans right on environmental issues — has come out against local fracking bans, even calling for a special legislative session this summer to pass a bill to stamp them out. If the bill fails, voters will likely put the question on a statewide ballot this fall.​

So the Dryden and Middlefield decisions come at a critical time. Those fighting fracking in their communities have realized for some time that they can’t count on their statewide elected officials to come to the rescue. With such a positive outcome in New York on the town level, they’re seeing the battle as shifting to the community level. But how this strategy works outside New York is still unknown. It will be up to each state to determine how strongly they back their municipalities' zoning and land use regulations.​

It Takes a Village, Town, Or City​

State politicians often talk about the economic boon that extractive (energy) companies can bring to the state. The fallacy is that such economic development trumps the environment. But these arguments are fabrications, according to Deborah Goldberg, managing attorney for Earthjustice, who represented Dryden and Middlefield.​

“If the extractive industry was actually contributing to the long-term economic wealth of an area, then West Virginia would be the wealthiest state of the union,” she says.​

Goldberg insists that hydrofracking actually has negative economic impacts on communities, as many areas that invite temporary industries, such as hydrofracking, to their towns often suffer both during the boom and the bust that follows. While the period varies greatly by location, drilling — the labor intensive component of energy extraction in hydrofracking — is done after a few years, according to Food & Water Watch.​

Goldberg says the politicians and individuals were too eager to believe the energy-industry hype when it came to job creation. She says that many of the economic benefits that came to communities, like those in Pennsylvania, were short-term and the biggest growth came in “burger flipping, trailer parks, drugs and prostitution.” She warns that similarly disappointing scenarios could play out elsewhere fracking is invited.​

Notably, Goldberg says some dairy farmers and carpentry workers in Pennsylvania were severely impacted by hydrofracking. Livestock died of various toxin exposures and local trucking companies, which once took farmers’ milk to market, become consumed by work from the oil and gas industry. Lumber became a rare commodity for carpenters as much of it was chipped and used to fill well packs at drilling sites, she says.​

“When the oil and gas industry is gone, everyone departs and they are worse off than before it started, as the industry drives away all the sustainable businesses that were there before,” she says.​

It’s been this consistent lack of acknowledgment from state and federal officials that hydrofracking comes at a heavy price — both economically and environmentally — to communities that have prompted fracking activists to act locally. And while Dryden and Middlefield decision may be an early — and even surprising — success, the effectiveness of going to the local route is yet unknown elsewhere. But we should soon have a clearer picture as other towns across the country are beginning to prohibit fracking.​

In Colorado, for example,​ some towns are already far into the fight. Voters in Longmont, just north of Boulder, have overwhelmingly voted to both prohibit the practice of fracking and the massive amount of waste disposal involved in the process. This despite strong opposition from a new pro-fracking “issues committee” called Longmont Taxpayers for Common Sense, which is heavily funded by energy corporations. This initial positive outcome in Longmont — despite what seemed to be long odds — has already prompted more towns in the state to adopt similar regulations. Goldberg thinks one of these cases will be tested in court.​

“There are a number of court cases working their way through the system in Colorado,” she says. “As litigation proceeds, there are simultaneously about 15 different ballot initiatives that have been composed that are at various stages of getting signatures to get on the ballot. And even if a court says they don’t have the authority to ban hydrofracking, the people in Colorado can always get together and change the state constitution.”​

But a constitutional ban might not be a path for Coloradans to take to prohibit fracking in their communities. A Quinnipiac poll back in November suggests that a clear majority of the state’s residents are against banning the energy extraction practice, making a state constitutional change unlikely.​

Local actions against fracking are also taking place in California, Florida, Illinois, New Mexico, North Carolina, Ohio, Pennsylvania, and Texas among other states. Dallas, a city ironically at the heart of the oil and gas industry, has been successful in keeping hydrofracking outside the city limits by requiring a 1,500-foot setback between wells and homes.​

Goldberg says there’s many opportunities in other states to keep hydrofracking out of their communities “as long as there’s a system in place that allows zoning.”​

“In more densely populated areas, there are greater opportunities for political organizing than in less populated, rural areas, which may also be more economically depressed areas,” she says. “So the wells get pushed to the areas where the people are less able to fight.”​

She notes that unincorporated areas, where there is no well-defined provisions for zoning, hydrofracking could continue without much, or any, pushback from local residents. And when a gas company’s mineral rights agent knocks on a door, it’s easy for a rural landowner to think there’s no harm in selling the drilling rights, especially when there’s no strong community to discuss the potential personal, health​ and environmental consequences. In such places, the fight against hydrofracking becomes much more of an educational and environmental justice issue.​

Josh Fox, the director of Gasland, the 2010 documentary that first drew open the curtain on hydraulic fracturing, also points out that it can be hard to get a consensus in rural areas where residents may be paid large sums for drilling rights.​

“When I started working on the film, it was already a very contentious and controversial issue,” he says. “So, in the Upper Delaware River Basin, there were a lot of people who wanted to lease their land to make money off this. And it was surprising how quickly that broke down along certain cultural lines, and it exacerbated political tensions that were there for a long time... and there were a lot of people who wanted their money and who were willing to put their neighbors in jeopardy and put all of us in harm's way.”​

How Not to Pick a Fight With a Fracker​

While the New York Court of Appeals ruling is only binding in New York, it is not unprecedented for courts from other states to take guidance from outside findings, says Goldberg. She believes that the New York court used land-use decisions from other states to help it come to a consensus, even though it was part of the court’s majority opinion.​

“I would certainly expect that courts will look at what its sister courts have done in making its decision. While they're not binding, they could be persuasive,” she says.​

Goldberg cautions that municipalities can’t write zoning laws banning hydrofracking that are unreasonable, arbitrary or capricious.​

“The distinction is between regulating land use and regulating industry,” she says. “States clearly have the power under state laws to regulate the industry, but it's an entirely different subject matter in policies and purposes than regulating land use. Both of those legal regimes — one state and one local — can operate harmoniously at the same time if the state regulates how activities are conducted and the locality regulates where they go.

“Localities should not think that what they can do is target the industry,” she continues. “When they do that, they're likely to get in trouble. So what a locality has to do is make a decision whether it wants heavy industry or not. And if they do want heavy industry, they must make sure that their zoning laws apply equally to the oil and gas industry as they do other industries.”​

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