Why Some of the Biggest Fights Over Fracking Are Taking Place Under the Radar
At night, the residents of Vestal can see the orange glow of the gas pads being flared across the Pennsylvania border. For some, the wells represent the promise of an economic prosperity that has been absent from the region in recent decades. To others, they are a threatening reminder of what could happen if New York’s moratorium on hydraulic fracturing is lifted.
With political support for natural gas running high, the focus for many anti-fracking activists has shifted to the municipal level. But where many communities across the U.S. have passed bans or moratoria on the controversial drilling technique, others remain divided by arguments on both sides of the debate. Such is life in Vestal, a town of 30,000 in the oil-rich Southern Tier of upstate New York, where well-organized pro-gas groups have maintained political control despite growing grassroots opposition.
In many other towns in New York and elsewhere, pro-gas groups have sprung into existence on the defensive, often with industry’s financial backing. But political and legal factors vary from state to state. The gas and oil industry has a relatively small economic presence in New York, as opposed to other states such as Colorado, where a robust industry has reaped profits for decades. Sometimes, the success or failure of a fracking ban hinges on voter demographics and longstanding cultural differences.
The Vestal Gas Coalition formed in 2008, following the arrival of landmen sent by gas companies to buy up mineral rights in the Vestal area. “Landowners were being abused, and taking up to half of what the land was worth,” says Robert Poloncic, the coalition’s chairperson. Meanwhile, members of the coalition could see the various outcomes of natural gas development right across the border in Pennsylvania, which Poloncic likens to the "Wild West.”
The idea was to form a collective of landowners who were interested in selling their mineral rights, but who wanted to do so on their own terms. They found a lawyer to develop their own lease—something that addressed the landowner’s need for greater control and higher rewards, but which remained marketable to gas companies.
Soon after forming, New York’s moratorium went into effect. Since then, the Vestal Gas Coalition has had ample time to mull over the specifics of their lease—as well as the potential payoff. There are 700 landowners in the coalition representing a cumulative 18,000 acres. They’re aiming for a $6,000 signing bonus, with 20 percent royalties on produced gas. Using those figures, the coalition estimates that a natural gas price point on the lower end of the scale ($4/dekatherm) would yield between $38,000 and $42,000 dollars per acre annually.
For Poloncic, who owns 100 acres behind the state university in Binghamton, that would mean around $4 million a year. That’s a life-changing event for a lot of people, he says.
“Vestal is a community that over the last eight years has gone from being in the black [to being] $20 million in the red,” says Poloncic. “This is far more than the landowner and the gas company getting rich. It’s about an income flow that is going to help for a long, long time on taxes.”
According to Poloncic, the Vestal Gas Coalition has done a good job communicating to Vestal’s town board what they have to gain in terms of tax revenue. In fact, one of the town’s council members has a seat on the coalition’s steering committee.
Before Sue Rapp started Vestal Residents for Safe Energy (VERSE), there was little perceived opposition to the natural gas industry. She began by organizing other anti-fracking activists and going door-to-door to collect signatures for a petition. When she had over 2,500, she sent out some press releases and presented the petition to the town board. To her surprise, she made the front page of the local newspaper.
“The town board was completely taken aback,” remembers Rapp. “I was not a known quantity.”
Initially, members of VERSE thought they might be able to find some common ground with the gas coalition. They decided to push the town board for road use laws that would mitigate the impact of industry traffic. But after spending time out in the community talking to residents, Rapp decided enough support existed for a moratorium.
The only way to do that was to persuade the town board. But they were on the coalition’s side. “Our Vestal town board is made up of 100 percent pro gas folks,” says Poloncic. “The VERSE group has tried to get people elected, and they haven’t come close.”
The politics of Vestal’s town board may not be entirely indicative of a consensus, however. Repeated polling shows a growing opposition to the increased use of fracking across the U.S. In several areas of New York, including the Southern Tier, a recent poll found that 51 percent of registered voters oppose fracking, while only 35 percent support the initiative by the state to go forward with drilling. “The people who want fracking have political influence and power,” says Rapp of Vestal. “But there’s no clear majority that wants fracking.”
Lacking a resolution on the state level, many communities in New York and elsewhere have rallied behind the principle of home rule. While only the state has the authority to regulate the oil and gas industry as such, home rule gives towns and counties the ability to legislate in areas where the state does not. In New York, the focus has been on passing zoning ordinances that disallow certain uses, including heavy industrial activities such as fracking. Bans in two towns, Middlefield and Dryden, were recently upheld by the state’s highest court.
But in areas like Vestal, home rule conflicts with a more traditional concept of property rights. Many landowners feel they should have the final say in what they can or cannot do with their property, and are ready to exclude the input of those who do not have land to lease. Most of Poloncic's coalition is 55 years of age or older, he says, and many are second and third-generation landowners. He characterizes them as “country folk,” setting them apart from most Vestal residents, who live in three major developments. “Major land owners are in support of natural gas,” he concludes.
But are a majority of them? Pat Roberts is a member of VERSE and a forty-year resident of Vestal who lives on a 51-acre property. For her, the dividing line lies elsewhere. It’s not about landowners versus residents. It’s about a certain group of landowners who “have a personal interest in making money off of [natural gas].”
The Battles of Colorado
Sharon Carlisle often references her father when talking about the potential health and safety impacts of fracking.
After returning from World War II, Carlisle’s father worked in a processing plant in Apollo, Pennsylvania that produced uranium for nuclear power plants and Navy submarines. The plant operated without interruption between 1957 and 1986, a period in which many of its employees were exposed to radioactive emissions alleged to be thousands of times higher than regulatory limits allowed at the time. In 2008, 365 claimants successfully sued for more than $80 million.
Carlisle's father was not one of them. He died from a rare form of cancer decades earlier.
His story makes the debate on fracking a personal one for Carlisle. “Colorado has constantly said that we have the strongest regulations in the nation,” she says. “I already know that doesn’t mean anything.”
How far municipal bans can stretch to stop fracking remains unclear, in part because home rule laws and regulations vary so much state-to-state. The New York Court of Appeal’s recent decision to uphold bans in Dryden and Middlefield was a victory for anti-fracking activists. But in states like Colorado, where there is a well-developed industry presence and preexisting regulations, legal challenges have had divergent outcomes.
The city of Longmont passed the state’s first ban in July 2012, and was immediately sued by the Colorado Oil and Gas Association (COGA). As if that wasn’t enough, the state’s own regulatory agency, the Colorado Oil and Gas Conservation Commission (COGCC), mounted a separate lawsuit, arguing that its own oil and gas regulations preempted tougher ones passed by Longmont’s city council prior to the ban. On June 24, a district court judge struck down Longmont’s fracking ban. The decision is stayed for now, but only while the city considers an appeal.
Deborah Goldberg is a managing attorney at Earthjustice who defended the town of Dryden in New York. “The problem is that there is no state where there’s the potential for fracking that has banned it,” she says. “People are using local legislation because the states are not protecting them.”
The city of Loveland, where Sharon Carlisle lives, lies 20 miles north of Longmont. Early in 2013, residents there learned that energy companies were looking to drill within the city limits. Carlisle, an artist, co-founded an organization called Protect Our Loveland and set about campaigning for a two-year moratorium. Demographically, Loveland is bit older and more conservative than Longmont, so Protect Our Loveland figured a two-year moratorium was most feasible. The group collected 1,000 signatures more than the 2,253 required to place the measure on November’s ballot, only to have the vote delayed by a legal challenge brought forth by a community member and funded by the Colorado Oil and Gas Association.
A single-question special election costing more $60,000 was later set for June 24, 2014. It coincided with the Republican primary, and the county, citing voter disenfranchisement, refused to sponsor. The city council proceeded anyway. Votes were cast, and the measure failed by 900 votes—a four percent margin. COGA had spent $400,000 dollars to defeat the measure, according to campaign finance reports. Protect Our Loveland: $8,000.
“They threw everything but the kitchen sink at us,” recalls Carlisle. “All we wanted to do was collect information to find out how we would be affected before [the gas companies] came in. All they wanted to do was drill.”
The situation in Colorado is a reflection of the state’s current political climate. Earlier this month, two different initiatives aimed at regulating fracking were set for Colorado’s statewide ballot. Activists across the state were engaged in a final push to collect additional signatures in support of the initiatives. But political support among the state’s Democrats was sharply divided. Fearing backlash from Republican voters in the upcoming midterm elections, Governor John Hickenlooper, a supporter of natural gas development, brokered a deal with Rep. Jared Polis, who had backed the initiatives, resulting in them being dropped.
Activists were furious. Community members who opposed fracking, many of them lifelong Democrats, had been betrayed. “All this turns into party politics. And that too is offensive to the grassroots,” says Kaye Fissinger, who managed the campaign to ban fracking in Longmont. “This is a people issue, not a party issue.”
As part of the deal, Governor Hickenlooper asked COGCC to drop its lawsuit against Longmont, which it did—for now. But with the industry’s lawsuit still standing, the city’s future is far from certain. New York’s court ruling could encourage other towns to pass bans. It might also give Governor Cuomo the cover he needs to drop the state moratorium, on the grounds of municipal self-determination. If Longmont’s appeal fails in Colorado, other communities could be dissuaded from attempting their own actions against fracking. Lawsuits are expensive. Longmont has already spent $164,000 and $61,000 defending lawsuits brought by COGCC and COGA.
As it turns out, anti-fracking activists and community members are more agitated than they are defeated. “This war is far from over,” says Fissinger. “[Polis’ decision] has infused an enormous amount of adrenaline into a lot of people.” She has dropped her affiliation with the Democratic Party and re-registered as an independent. “If they think that the outcome is to shut people up, they have another thing coming,” she says.
Ballot Box Tactics
Back in Vestal, VERSE has asked once more for a moratorium from the town board. Prior to the state court’s decision on June 24, council members brushed the idea aside, warning that the town might be sued. That point may now be moot, but they still haven’t changed their mind.
VERSE isn’t done trying. “There are a large percentage of people in Vestal and the Southern Tier who either don’t think that fracking will impact their lives or don’t have enough information to make a decision about it,” says Roberts. The group is looking to make some difference in the local elections. “Basically it’s a matter of electing people that have better sense of the dangers of fracking to Vestal.”
In February, the Joint Landowners Coalition—an umbrella organization that includes the Vestal Gas Coalition—sued the state for continuing its moratorium, arguing that the governor had taken political control of impact assessments being conducted by the state’s health and environmental conservation departments. The JLC is appealing a judge’s decision to block the lawsuit. Poloncic is worried that the anti-frackers have made all the difference they need to.
“Quite frankly, if I were sending the oil and gas industry to develop an area, with all the other choices they have… Why come here?” He sounds glum. “By one regard, the opposition group has won.”