The Immorality of No Frack

 

Let's face it—we all use fossil fuels. There is no argument there. Some of the most vociferous people I have met are environmentalists deprived of their fossil fuels. Whereas I don’t heat my bedroom and keep my home at 60 degrees in the winter I note that most environmentalists keep their homes at a comfy 66 degrees or higher. Ironically many of them have air conditioning for the summer as well.  All it takes is a quick drive through Ithaca to realize that 90% of the people are using cars for transportation.  The fact of the matter is not many environmentalists have “Gone Amish” (too much work).  So there is no argument  - we all consume fossil fuels.
 

There is also no argument with respect to obtaining fossil fuels. This process requires mechanical systems operated by humans. Such systems are subject to failure. This is clearly evidenced by recent events in the Gulf of Mexico, Alaska, the North Sea and Nigeria.
 

These two facts would have no bearing on our current situation were it not for the reality that we now have the potential to develop local energy resources. This ability to extract local energy coupled with the refusal to do so because of risk develops a moral dichotomy for those who continue to consume fossil fuels. So let's just be clear about what “No Frackers” are saying. They are indicating that they are going to continue to consume fossil fuels and that since obtaining these fuels does involve some risk they expect the poor and disenfranchised people in other parts of the world to assume that risk, but not them.  When one also couples this with the fact that we are expending immense amounts of energy to transport fossil fuels from around the world to our local area one can only arrive at one conclusion.
 

The desire to expend immense amounts of energy to import fossil fuels developed thousands of miles away from where they will be utilized, coupled with the desire to make the poor and disenfranchised people of the world take risk with their environments but not ours while we continue to lead extravagant lifestyles burning these fuels is the zenith of moral hypocrisy.

Michael Niziol, MD

Copyright 9/15/2011
Posted by permission of the author

On August 1, 2011, the Dryden Safe Energy Coalition (DSEC) placed the Town of Dryden Board on notice that enacting a ban on all energy development in the Town would constitute regulating gas development in violation of the state’s preemptive Environmental Conservation Law Section 23-0303, which reserves such power to the state level.  DSEC predicted that such action would almost certainly result in a lawsuit against the Town, forcing the Town and its taxpayers to incur the costs of defending a suit.  On August 2, the Town Board adopted a ban on all energy development.  In the wake of that action, on September 14, it was reported that an energy company will be filing suit against the Town.

 

On September 15, yet another lawsuit was filed by a landowner group in the Town of Middlefield, challenging another ban.  Thus there will be two test cases in the New York State courts determining whether towns exceed their authority when they zone away all choices of their residents to develop the energy potential of the land they own.

 

DSEC co-founder and attorney Henry S. Kramer said, “We alerted the Dryden Town Board of the dangers of a ban and the legal risks they were taking.  Yet, they chose to go ahead and, sadly, as a direct result of their decision, the taxpayers of the Town of Dryden will now be forced to pay taxes to defend their precipitous action.  Had they protected the Town’s finances and prudently waited, the test case would have come, as it has, in Middlefield, or elsewhere, and saved the taxpayers of Dryden thousands in legal costs a time when real wages are falling, food costs rising, and many residents are finding inflation means their paychecks buy less, even if they have a full time job.”

 

Kramer added, “Unfortunately the Dryden Town Board overreached and wrote a zoning regulation so sweeping in its scope that new homes to be constructed will be barred by its terms from storing natural gas or propane in tanks on their premises or installing pipe lines to hook up to existing natural gas lines.  They also claimed a right to preempt the United States Constitution by claiming that Dryden Town ordinances are superior to and override both state and federal law and authority.”

A lawsuit has been filed against the Town of Middlefield in Otsego County to declare the provisions of its Zoning Law pertaining to oil and gas drilling within the Town of Middlefield to be void and in violation of New York State law. The law firm of Levene, Gouldin & Thompson, LLP has been retained to stop the town’s efforts to ban oil and gas drilling. 

 

Jennifer Huntington and other Middlefield residents have already signed oil and gas leases. The new town zoning law will deprive them of their rights to market their minerals under their leases. Similar zoning laws are being enacted in other New York towns. All of these bans violate Environmental Conservation Law § 23-0303(2) which states that all local municipalities are preempted from passing local laws relating to the regulation of the oil and gas industries. Towns may not pass laws prohibiting oil and gas operations since the NYS Department of Environmental Conservation is exclusively charged with the obligation to regulate the oil and gas industries in New York. 

 

The Middlefield case will establish precedent preventing towns from violating New York law.  Success in Middlefield will be a win for all landowners in New York. Donations to support the Middlefield case can be made payable to the “Middlefield Fund For Landowner Rights” and mailed to NBT Bank, 2 Commons Drive, Cooperstown, New York 13326.

 

Contacts:

 

Scott R. Kurkoski, Esq.
Levene, Gouldin & Thompson, LLP
450 Plaza Drive, Vestal, New York 13850
Phone:(607)584-5620   
E-mail: [email protected]

 

Michael R. Wright, Esq.
Levene, Gouldin & Thompson, LLP
450 Plaza Drive, Vestal, New York 13850
Phone:(607)584-5709  
E-mail: [email protected]

 

Jennifer K. Huntington
Cooperstown Holstein Corporation
188 County Highway 33W
Cooperstown, New York 13326  
Phone:  (607) 547-2797

The following, by Henry Kramer, is cross-posted at EID: 

The Dryden Safe Energy Coalition (DSEC) was formed two months ago.  Our birth arose from our founders’ efforts to find the unbiased factual truth regarding energy development; most local forums seemed to be more political rallies than balanced information dissemination.  As an essential part of its mission, DSEC provides the public throughout Upstate New York with fact and data driven education regarding energy development.  DSEC held its first informational session in Binghamton on August 22 concerning legal issues related to energy.

DSEC’s second public education session was planned for Wednesday evening September 7 in Dryden on the subject of “Water and Energy Development.”  The program was designed stressing that it offered a rare “all views” opportunity for a balanced panel; speakers ranged from a natural gas opponent to a neutral to industry experts.  People from all over upstate central New York were invited to this  meeting.  The thirst for such unbiased presentations must have been large indeed, as close to 200 people attended.  Unfortunately, our water program faced far too much water, demonstrating that water is  abundant and renewable here.

At the last minute some of our speakers were unable to participate due to record rainfall in their area (Binghamton), leading to serious flooding and a declared state of emergency.  Once notified, DSEC was no longer able to present the balanced “all views” event which was the core premise of DSEC sponsorship.  DSEC made the difficult decision to cancel the meeting.

Some people remained behind and had an informal non-DSEC sponsored discussion which included a partisan speaker, Jim (Chip) Northrup.  This was possible because Jim Northrup, showing no sense of respect for the “all views” format under which he had been invited, exploited the emergency and the remaining audience that DSEC had assembled to make a very one sided and anything but neutral presentation.

Therefore, DSEC will be rescheduling the canceled all views forum and will publicize the new date and location.  Future programs will include: legal issues including compulsory integration v. the “right of capture”; the economic pros and cons of energy development; and, national energy policy including dependence on foreign energy and international intervention to protect vital energy interests.

Some of those who would totally ban energy development in our area have called DSEC “pro-drilling.”  The problem with this description is that it divides the world of opinion on energy into just two camps.  Either, like them, you are opposed to all energy development or you are their enemy and are assigned the label “pro-drilling.”  For them, there is no room for a middle position.

DSEC believes the world is divided into three parts, not two: those for bans; those for immediate production; and those, such as DSEC, who conclude that energy development requires careful regulation to protect the public.  We believe that the NY State Department of Environmental Conservation (DEC) will insist on necessary safeguards and as experts can be trusted to determine, on a state wide basis, whether the natural gas production process can go ahead safely.  We also note that the DEC in their SGEIS have found hydraulic fracturing with safeguards an acceptable risk.  DSEC is neither anti nor “pro-drilling”.  We favor natural gas production, true, but only if adequate safeguards are provided.  Bottom line, we are for safe, regulated development of our natural gas resources.  Absent that, we would oppose any efforts to develop this resource.  We represent the center, the moderate “Middle Way.”

We prefer New York State administration of the rules.  First, it is very difficult for any business to cope with different laws and standards every ten miles or to see those laws possibly enacted, repealed, or modified when town boards change hands.  Second, town boards do not have the expertise to evaluate risk.  Third, state law preempts local governments from regulating oil and gas development.  Some ban advocates admit that local governments cannot regulate natural gas production but they claim they can prohibit it.  This is illogical.  A ban is simply 100% regulation.  Fourth, towns that ban development are essentially seizing and confiscating mineral and property rights without compensation.  That is unjust, runs roughshod over individual rights, and takes away landowners’ rights to decide for themselves whether to lease and how to use their property.

All across New York State people are trying to understand the pros and cons of energy development.  We see this as risk assessment.  Every human activity involves some risk.  Get in your car to drive to work and you risk an accident.  But, we’ve developed road specifications and traffic control to reduce the risk.  We balance risk v. reward.  Because people have different risk tolerances, they don’t always agree on how the balance should be struck.  The same thing is happening with energy development.  Citing problems from the earliest wells is like citing mine safety violations in the nineteenth century.  The systems are better and are constantly being improved.

We believe the public must weigh the risks of development against the economics of development.  Upstate New York needs jobs and economic improvement.  Energy development is the only significant game changer in sight.  Upstate residents in a recent Quinnipiac Poll favored development.  At DSEC, we will continue our mission to educate, so that people can make up their own minds free from “visceral education” which is choice by gut.  For more information on the Dryden Safe Energy Coalition please visit us on the web at drydensec.org

From an article in today's Ithaca Journal:

PHILADELPHIA -- The chief executive of one of the top U.S. natural gas producers delivered a blistering rebuke of critics of shale gas drilling on Wednesday, calling them fear-mongering extremists who want Americans to live in a world where "it's cold, it's dark and we're all hungry."

Speaking at an industry conference in Philadelphia, Chesapeake Energy Corp. CEO Aubrey McClendon said that gas drilling has been done safely for decades using a process called hydraulic fracturing, or "fracking."

Environmental activists say that fracking and the drilling boom it's created have led to polluted air and tainted groundwater and made people sick...

....Stephen Cleghorn, who runs an organic farm in Reynoldsville in western Pennsylvania, said outside the convention center that he doesn't believe industry assurances.

"Don't let anybody tell you it's responsible drilling," he said...

Read the whole thing.

Finished gas well behind a barn in Susquehanna Co., PA, August, 2011

You can listen to Henry's interview with Dave Vieser on the hydrofracking forum in Dryden tonight (Wednesday, September 7th, 7:30pm, Dryden Fire Hall) on "Water and Energy Development" here.

State Senator Ball has proposed “responsible drilling” regulations below. DSEC, in keeping with its mission of a “middle way” toward energy development, suggests stripping the proposal of its numerous “poison pills” designed to turn “responsible drilling” into a feast for lawsuits and trial lawyers and effectively a prohibition and replacing it with the following (DSEC modifications and comments shown in italics).

• Immediate 180 day comment period on hydrofracking.

DSEC rejects lengthy comment periods.  Most of what needs to be said has already been said.  Lengthy periods are just delaying tactics.  DSEC supports sixty days which will be adequate.  Those who have strong positions should be able to say what they want to say in that time.

• Mandatory full disclosure of all chemicals used and compounds produced during the hydrofracking process. Requires oil and gas companies to inform New York State Division of Oil, Gas, and Geothermal Resources what chemicals are injected, the source of water used, how much water was used, and whether any radiological components were injected, and their fate.

We accept and promote the concept of mandatory disclosure as a reasonable regulation for safe energy  development.  Disclosure requirements should be set by the DEC and should be similar to those in use in other states which have mandatory disclosure laws.  The disclosure requirements should not be written with a punitive intent but rather to provide the public with necessary information.

• Mandatory water and soil testing by an official governmental third-party for presence of chemicals used by the fracturing process prior to drilling

Prior testing is to establish a base line.  Reputable private labs should be able to do this testing, there is no need for an expensive and bureaucratic government agency.  Base line testing should be voluntary for the landowner and the industry, whoever wants it done should pay for it.  People should have choices.  Mandates take away individual freedom and responsibility.

• All fracking companies must agree to sign a Presumption of Causation Agreement with the State of New York.

This provision DSEC rejects as a “poison pill.”  Would you sign a blank check to be fiscally and legally responsible for anything that may happen in an area, whether or not you caused it?  No sensible business organization would sign such a pledge.  Senator Ball must know this and that this provision is a deal killer.  The industry should be held responsible for the damages it actually causes, not for damages for things it does not cause.  DSEC proposes that energy companies be required to establish a damages escrow fund, which will be returned to them, with interest, if they do no damage.  If damages are established, as provided in law, those damaged would be assured by the escrow that adequate funds have been deposited and are available to pay damages.  The companies interests in recovering their deposits would be an incentive to safety.

• Mandatory full reimbursement to property owners by negligent fracking companies for 150% of the real estate's market value of property, based on estimates prior to drilling, and 100% of the cost for full remediation of soil and water. The company will also be accountable for full reimbursement of the land owner's legal fees.

Damages should be limited to damages caused, not punitive.  DSEC believes reasonable regulation does include the full cost of remediation for damages actually caused.  The “American Rule” is that each party is responsible for its own legal fees.  Those granting leases need to be aware they are entering contracts and that in return for the monies received, they do take on some risks.  Free people are allowed to enter into contracts and to understand that economic gain sometimes means risk.  No one is being required to sign a lease or to permit surface activity.

• Mandatory full remediation of soil and water, and free medical monitoring for life. All settlements are not to be taxed.

When the energy company causes damage, it should fully remediate or compensate.  Free medical monitoring for life is too broad, could constitute a hundred year liability, and needs to be redefined as germane medical monitoring as medically necessary, not every medical condition that may arise.  An arbitration procedure should be put in place to handle disputes about coverage.  Senator Ball and New York State cannot determine whether settlements are taxed by anyone other than New York.  Federal taxes are the larger component and the state has no power over federal taxes.  DSEC believes compensatory damages should not be taxed and that no punitive damages should be allowed.

• Allow local governments to enact or enforce certain laws and ordinances relating to oil, gas and solution mining.

DSEC does not accept this provision.  Local government control over energy development means “local pocket majorities” can establish different rules in each and every town and village.  Such a “patchwork quilt” of regulation would show that despite talk of New York being “open for business” it is in fact closed in many places.  Local governments lack the expertise of the DEC, which should set the regulations for New York.  Limits have been placed on local government control over high tension power lines.  Why?  Because without limitations on local government, the “Not in My Back Yard Syndrome” means high tension power lines could never be built anywhere.  Energy development is not an appropriate subject for local home rule by local pocket majorities which could switch places by election every few years.  Current law should not be changed.  Those who object to energy development are represented as we all are at state level.

• Mandatory adherence to an environmental impact assessment process, similar to New York's SEQR Process, to assess the impact to the environment from fracking.

DSEC considers the need to do a full environmental impact statement on each well a “poison pill.”  This is expensive and bureaucratic.  Moreover, any impact assessment should consider both economic and environmental concerns and should balance both of these.

• Mandatory disclaimers and warning statements on lease documents about the risk of contamination of soil and water, as well as the potential health affects, related to fracking spills.

Another “poison pill” from State Senator Ball.  Why present only one side?  It is designed to scare and deter leasing, not really to inform, and presumes adults signing leases are too uniformed to know what they are doing.  There are advantages as well as disadvantages in energy development.  Senator Ball’s proposal is similar to running a national election but mandating everyone listen to one party’s material.

Finally, Senator Ball’s position ignores the need for a national energy policy.  Natural gas was declared in the Kyoto Protocols to be a cleaner energy source.  The U.S. is dependent on foreign energy sources which causes involvement and sometimes conflict overseas, with loss of American lives.  National energy development policy should allow the states a role in regulation, but DSEC believes that states should not be permitted to delegate that authority to local pocket majorities or allow the NIMBY (not in my back yard) syndrome to block energy development.

You can listen to Henry's interview with Dave Vieser on the recent meeting questioning the legality of hyrdofracking bans by individual communities here.

Central New York municipalities take steps to control hydrofracking

The city of Syracuse may soon join more than 20 local governments in Upstate New York that have banned or limited the controversial gas-drilling technique known as hydrofracking. 

But whether bans like the one proposed in Syracuse, and already enacted from the town of Ithaca to the city of Oneonta, will hold up in court remains to be seen. Activists, lawyers and even the state’s top environmental regulator say they expect the courts to ultimately decide the issue. 

Municipal officials and their attorneys say the bans are a proper and legal extension of a town’s right to enforce zoning, just as a town can prevent a factory from being built in the middle of a neighborhood. Opponents say the municipalities are usurping the state’s authority to control a public natural resource and are taking away the rights of property owners...
 

Read the rest.

While the reporter generally did a good job, DSEC takes issue with a few of the points in the article:

• Tompkins County did not enact the road ordinance; it got put on hold again.
• The statute on mining reclamation is different than the one on oil and gas.  The mining reclamation statute does not have the complete preemption language the oil and gas one does.  Words have meaning after all, and the legislature is presumed to have done this deliberately and to know how to write a statute.  Any attempt to use the mining statute cases as precedent falls afoul of the different statutory wording.
• The story buys the claim that drilling is "heavy industry." See our earlier post on that.
• The story misses the key point on takings—that people are losing millions in property values and since some of them own only mineral rights, they are losing everything.  That's why the Udell case on zoning says that zoning cannot take a "substantial portion of the value of the property."  Lease rates already are more than the original value of the land as vacant land.

On WENY-TV, 8-16-11: 

DSEC observes:  Local governments have the legal right to regulate roads.  The provision of state law that preempts their right to regulate drilling at all carves out and allows road regulation, but road regulations must be activity neutral and not single out any line of business.  The Tompkins County Legislature is finding it difficult to write a law that is neutral on its face as required by law but which in practice singles out drilling trucking, the real intent, without also hurting local businesses.  In fact, the tasks of writing an industry neutral law and not hurting local businesses may be incompatible and prove to be impossible.