Bans Upheld !

This last week brought important developments for the towns in New York State that seek to protect themselves from high volume, slickwater, horizontal hydrofracking through the use of their local zoning laws. Both the towns of Dryden (Tompkins Co.) and Middlefield (Otsego Co.) used zoning to ban gas drilling and heavy industry within their jurisdictions and both towns were sued, each by different plaintiffs. This week in two separate decisions, two State Supreme Court judges ruled in favor of the towns, strongly affirming home rule. Both decisions acknowledge that state law regulates gas drilling, but that it is the right of municipalities to determine land use and permissible activities via zoning.

On August 2, 2011 the town of Dryden amended its zoning ordinance to ban all activities related to the exploration for, and production or storage of natural gas or petroleum. The town was sued by the Anschutz Exploration Corporation. Anschutz claimed that the New York State Oil, Gas and Solution Mining Law overrides all local ordinances related to natural gas drilling. Tompkins County Supreme Court Judge Phillip Rumsey disagreed and ruled that although the Oil, Gas, and Solution Mining Law does indeed regulate those industries, they are still subject to local regulations and zoning.

Mahlon Perkins, Dryden town attorney stated, “That was the crux of the town’s argument all along… it is important to remember that this case is not about fracking….this case is about land-use authority. It comes down to whether a municipality that has land-use authority-- such as a village, city, or town can determine where heavy industrial uses are allowed or if they are allowed, and it is not about regulating the industry.”

State Assemblywoman Barbara Lifton, whose district includes the town of Dryden, said she was not surprised by the ruling. “I cannot say that I am shocked because I think the arguments for home rule are very compelling… I am thrilled the judge gave us a fair hearing and upheld our State’s tradition of home rule. It was a very logical decision and one that I strongly agree with.”

On June 28, 2011 the town of Middlefield enacted a zoning law that prohibited heavy industry and all new oil, gas, and solution mining. On October 28, 2011 the town of Middlefield was sued by a landowner who had signed a lease with a gas company claiming that the lease superseded the zoning law and that the zoning law should be declared void. In the second ruling last week, State Supreme Court Justice Donald Cerio affirmed that the town of Middlefield was within its rights under state law to ban oil and gas drilling. Judge Cerio, like Judge Rumsey, affirmed New York State’s right to regulate how  the gas industry operates, and the towns right to determine where that industry may or may not operate.

Both decisions are expected to be appealed.

I think it is important to remember that on Thursday, Dec. 8 the Alfred Town Board adopted a resolution to become a “friend of the court” in the Dryden and Middlefield proceedings. The Board passed unanimously a statement in “support of its sister towns in order to reassert the right of municipalities throughout New York State to determine what land uses are appropriate through the municipal home rule powers granted by the New York State Constitution and the New York Municipal Home Rule Law.”

In response to these two rulings Helen and David Slottje, lawyers who helped draft Alfred’s one year moratorium on hydrofracking said, “…Local elected officials across the state have stood strong and stood together, with the unflinching backing of so many of their residents….This strength and resilience was tested by these lawsuits….[B]ecause the members of the town boards in Dryden and Middlefield were willing to exercise their right to protect their citizens and stood firm in their convictions, we now have definitive answers from two separate courts that clearly support community rights.”

As reported in Rochester’s Democrat and Chronicle, when Governor Cuomo was asked about municipalities’ rights to enact bans against gas drilling he said, “… I believe that it’s up to the courts. And if the courts say they have that right, they have that right.”

The right of towns to determine their own fate and protect their very nature and character is something that we have taken for granted. Fracking has changed all of that. We have now received legal affirmation of this right and I find this tremendously heartening.

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The actual court documents are interesting to read. The Dryden document can be found at :

http://schoharievalleywatch.org/wp-content/uploads/2012/02/Dryden-Ruling.pdf

The Middlefield document can be read at:

http://schoharievalleywatch.org/wp-content/uploads/2012/02/Middlefield-decison.pdf

Informed Consent and Compulsory Integration

We have all had the experience of going to a new doctor’s office for the first time and before we are seen we fill out forms in which we give the physician permission to examine us, prescribe treatments, suggest tests or share our medical records with appropriate other professionals. Prior to an outpatient procedure or a surgery in the hospital, a doctor explains the risks and benefits and answers our questions about alternatives, side-effects etc. Based on this communication we either give our consent or refuse the treatment. This process, which is a basic concept in medical practice, is known as informed consent.

Informed consent is prevalent in many parts of our lives. In the grocery store, all ingredients are on the labels, allowing us to make an informed decision. Although we might get sick of the drug ads on TV, they also inform us of possible side effects. The notion of informed consent is so fundamental to how we are able to make decisions that it is shocking when basic transparency is withheld from us.

The gas companies operate behind a veil of secrecy. They are not required to reveal what chemicals they mix with water, even though they are, first, pumping millions of gallons of this toxic mixture into the ground to “frack” the shale and then storing what is recovered in large pools on the surface where toxic compounds are mechanically evaporated. As you can see in the aerial photograph taken in Pennsylvania these pools are often in disturbing proximity to houses.

This practice runs counter to the open communication and accountability that is at the heart of the concept of informed consent. I want to emphasize that even though this week’s column is basically about ethics, even if the gas companies are eventually forced by the DEC to reveal all the chemicals they are using, just knowing what they are is not a solution. Many of the carcinogens used (next week’s column) make fracking a practice that is dangerous to our health and the environment.

Another practice that conflicts with an individual’s right to give his or her consent is called Compulsory Integration. The moment it was explained to me my immediate thought was, “in America? No! you have to be talking about Russia or China!”.

Although it sounds like a concept from the struggles of the civil rights era, perhaps something concerned with enforcing basic freedoms, actually, it is quite the opposite.

Compulsory Integration means that when gas companies create well spacing units, all they have to control by lease is 60% of the land. The other 40% is “integrated,” meaning whether the landowners consent or not, their land will be fracked. Non-participation is not an option. Let me repeat: non-participation is not an option. Simply put – if my neighbors have signed leases and the gas company wants to frack horizontally under my land, but I want to protect my family, animals, land and water from drilling and the effects of chemicals injected into the ground, evaporated into the air, dumped on fields, roads, and in streams, I cannot.

The gas companies are allowed to do this under the Compulsory Integration provisions of the New York Oil, Gas and Solution Mining Law of 2005, according to Christopher Denton, an Elmira attorney who has represented dozens of landowners in compulsory integration cases. As Mr. Denton explained, the original intent of the law had an element of equality to it. In the old days of conventional gas or oil extraction you had a pool or a reservoir underground. That pool didn’t recognize property boundaries. Because these formations were under pressure, all it could take was one neighbor drilling into them to empty them, essentially depriving the other landowners, whose property was also on top of the formation, from obtaining their share of the profits. The intent of this statute was to make sure that adjacent landowners could not be deprived of the value under their land and to make sure profits were shared proportionately. Mr. Denton said that there was no mention of high volume slickwater horizontal hydrofracking in the statute.

A law whose intent was originally about fairness is now used by an industry to rob us of our rights and freedoms, our right to clean air, clean water, health, and our sovereignty as landowners to give our consent, or not, freely. This is eminent domain practiced by private industry on a mass scale and in my opinion, a violation of some of our most basic constitutional rights. 

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For more on this issue, Cornell Cooperative Extension has an impressive online resource of educational materials. For an overview of the available resources go to:  http://ccetompkins.org/environment/shalegas/gas-drilling-library

On this page scroll down and you will see an entry for Compulsory Integration that will take you to some very informative video presentations. 

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Moratorium and Ban update: In New York State there are currently 76 communities with either a ban or moratorium in place. 37 more are in the process of study, discussion, and/or drafting legislation. The newest towns are: Nunda and Mount Morris (Livingston Co), Wayne (Steuben Co.), Moravia (Cayuga Co.), and Mendon (Monroe Co.) ; all have enacted one-year moratoriums. The Town Board of Caroline (Tompkins Co.) passed a resolution to prepare a draft local law that prohibits unconventional gas drilling and associated high impact activities.

Bans and Moratoria in New York State

In 2009 the DEC released a draft report known as the Supplemental Generic Environmental Impact Statement (SGEIS) This document looked at possible impacts of hydrofracking in New York State and proposed regulations for the industry. Due to significant criticism, the DEC released a revised SGEIS, but in this document too there were many inadequacies and issues not even addressed. The public comment period on the latest SGEIS recently came to a close and in response the DEC received 61,000 comments.

As many readers probably have heard, the SGEIS exempts  hydrofracking from the watersheds of New York City and Syracuse. This is a curious double standard applied to the states’ drinking water. As Jack Ossont, spokesman for the Coalition to Protect New York has said, “ If Fracking is so safe, why ban it in certain areas? And if it’s dangerous, why allow it in others?

I live in East Valley and my family depends on about 100 acres of watershed to feed the spring that is piped to our house. We also use a private well. Many of my neighbors have similar water resources. Based on the experience of people who live in hydrofracking zones across the country I feel these water supplies are vulnerable if this form of gas extraction is permitted in the Town of Alfred.  Why are urban areas protected and rural areas sacrificed?

Given that this inequity comes from Albany, towns and villages  are left on their own to attempt to protect themselves.  And as citizens, we are legally helpless unless our town governments act to protect us.

The moratorium that the Town of Alfred has put into place is a start. I recently received a document from an organization called Keuka Citizens Against Hydrofracking that compiles weekly the moratoria and bans that are in place or are being considered in the parts of New York State that could be affected if hydrofracking comes to New York. Things are happening quickly and the list grows by the week.

How does Alfred fit into the larger context of New York State?

As of 2/8/12 here are the communities that have protected themselves through moratoria (m), or bans (b). There are many additional communities that are in the process of study and discussion, and/or drafting pending legislation (p). I have grouped cities and towns by region because I think it is interesting to see how the Southern Tier compares with other regions in New York State:

In the Finger Lakes Region – Ithaca(b), Canandaigua(m), Skaneateles(m), Syracuse(b), Naples(m), Conesus(m), Livonia(m), Avon(p), Geneseo(p), Brighton(m), Lima(p), Mendon(m), Nunda(p), Springwater(p), West Sparta(p), Sparta(p),  Mount Morris(m), North Dansville(p), Rush(p), Dansville(p), South Dansville(p), Wayne(p), Pulteney(p), Canadice(p), Hector(p), Bristol(m), South Bristol(m), Ulysses(b), Dryden(b), Danby(b), Camillus(b), Geneva(b),  Benton (m), Jerusalem (m), Barrington(m), Milo(m), Middlesex(m), Dewitt(m), Tully(m), Marcellus(m), Spafford(m), Jordan(m), Elbridge(m), Otisgo(m),  Onondaga(m), Niles(m), Cortlandville(m), Richmond(m), Gorham(m), Caledonia(m), Enfield(p), Groton(p), Lansing(p), Hector(p), Starkey(p), Torrey(p), Summerhill(b), and Virgil(b). Yates County passed a resolution calling for the same protections for their watershed as New York City and Syracuse. Penn Yan will not accept any hydrofracking wastewater for processing at the village wastewater treatment plant.

In the Central Leatherstocking Region :  Utica(m), Rome(b), Otsego(b), Cobbleskill(p),  Cooperstown(b), Oneonta(b), Annsville(m), Augusta(m), Ava(m), Boonville(m), Camden(m), Clinton(m), Deerfield(m), Florence(m), Floyd(m), Forestport(m), Kirkland(m), Marshall(m), New Hartford(m), Paris(m), Remsen(m), Sangerfield(m), Steuben(m), Trenton(m), Vernon(m), Westmoreland(m), Whitestown(m), Manheim(m), Blenheim(p), Carlisle(p), Seward(p), Sharon(p), Middleburgh(p), Columbus(p), Plymouth(p), Smithville(p), Little Falls(p), Maryland(p), Milford(p), Morris(p), Westford(p), New Lisbon(p), Sangerfield(p), Vienna(p), Middlefield(b), Springfield(b), Cherry Valley(b), Plainfield(b), Richmondville(b), Butternuts(p), and New Lisbon(p).  The Cooperstown Chamber of Commerce has issued a statement supporting a total ban on fracking due to the impact on their watershed, farming, and tourism.

In the Catskill region -  Bethel(p), Highland(m), Sidney(p), Andes(m), Lumberland(b), and Tusten(b)   

In the Southern Tier:  Alfred (m), Canaseraga(p), Vestal(p), and Binghamton(m) 

In the Niagara frontier : Buffalo(b), and Wales(b)

Additionally, Dutchess, Ontario, Onondaga, Sullivan, Tompkins and Ulster Counties have enacted bans on county owned land.

Clearly the Finger Lakes and Central Leatherstocking regions are working hard to protect themselves, in spite of what the eventual DEC regulations might become. It gives me pause to see then how vulnerable the Southern Tier and Western New York will be.

As I looked over the methods that these towns have used to enact bans, the most common strategy that has been used is first, to rewrite or amend their Comprehensive Management Plan because many of them were created prior to fracking being an issue. Who would have imagined the wholesale transformation of the roads and countryside into an industrial zone?  Then second, to alter the zoning and land use laws to reflect the vision of the comprehensive plan, to then, in effect, “zone out” horizontal high volume slickwater hydrofracking.

I urge all citizens of the Town of Alfred to keep talking to the members of our Town Board and Town Planning Board. Let them know your feelings. This is the only way a moratorium will turn into a ban.

The Town Board meets the second Thursday of the month. The Town Planning Board meets the first Wed. of the month. Both meet at 7pm  at the Town of Alfred Offices on Shaw Road. 

Inaugural Column

This is an inaugural column about the issues and challenges faced by our community if horizontal, high volume, slick water, hydrofracking in the pursuit of natural gas comes to New York State.

It is probably safe to assume that most readers have an idea of what this means, but a short recap is in order. The process, commonly known as “ fracking”, is a relatively new method of natural gas extraction that involves drilling vertically through the water table into the Marcellus Shale, a geologic formation with gas trapped in it. Each well is then drilled horizontally thousands of feet. Millions of gallons of chemical laced water are used to fracture the shale, releasing the gas. Over 200 chemicals used in this process are kept secret because fracking is exempt from The Safe Drinking Water Act and the Safe Air Act. The gas industry will not disclose what chemicals are used, saying they are “ proprietary” but many are thought to be known carcinogens. Generally, between 1-8 million gallons of “water” are used to frack a well one time and each well can be fracked up to 10 times. In Pennsylvania, where drilling is underway, the DEP estimates that each well requires 1,000 tanker truck trips. There are usually six wells per pad, 16 wells per square mile. Water will be withdrawn from lakes, rivers, streams, ponds and wells. All of this “water” is then considered toxic waste. Some of it stays underground – approximately 50% of the “water” is recovered and is then held in football field size ponds where the VOC’s (volatile organic compounds) evaporate. Scientists have identified compounds in this highly toxic vapor, as benzene, toluene, and xylene and other carcinogens. The remaining wastewater is then trucked to wastewater treatment plants that, according to an investigative series in The New York Times, are not equipped to safely process such a toxic brew. The same series revealed that “recovered water” also contains radioactive materials brought up from deep within the earth.

Fracking has been occurring in many western states and in Pennsylvania. There are a number of landowners who eagerly signed leases with the gas companies, who now have polluted water wells.

The many issues raised by fracking include constant tanker truck traffic, road use, the transformation of a pristine countryside into an industrial landscape, how the noise of drilling 24/7 affects citizens and wildlife, as well as the potential pollution of waterways and contamination of drinking water. All of these issues are connected to the loss of property values in fracked areas. Furthermore, citizens harmed by fracking, who have to contend with illness in their families or animals or polluted water find that they are powerless against gigantic corporations.

These are some of the issues that I will explore in future columns. The column will have a clear point of view, one that comes from my concern for our community, families, our way of life, land values, ecology, and health. This column will be a place to distribute information that I feel is timely as the Town of Alfred will decide at the end of the moratorium year whether to ban the practice within its jurisdiction or not. I would also like to travel to communities in Pa. and report back on the effects of drilling.

As we make a choice about our future, I think it would be appropriate to take a look back to the recent history of Allegany County. Many readers will remember, in late 1989, that New York State announced its intention to establish a nuclear waste dump here. In summary, the State was met by a resolute citizens’ resistance that involved legal challenges that went ultimately and successfully to the Supreme Court, as well as, widespread non-violent civil disobedience in the roads and fields of Allegany County. There were many inspiring individuals and moments in this conflict, but for me probably the most inspiring and the event that still has the power to bring tears to my eyes occurred on April 5, 1990. A line of senior citizens chained themselves together across the bridge in Caneadea to block an army of state troopers trying to accompany representatives from Albany who were in Allegany County to inspect a possible site for the dump. They sat under a banner that read, “Grandparents For The Future”. Those elders faced jail time and large fines and yet there they calmly sat. When finally their chains were cut and they were arrested, each was asked their name and each responded, “My name is Allegany County.”

I feel the onslaught of drilling and the technology it encompasses poses a far greater threat to our town than the nuke dump ever would have. I also believe the dangers to human health, water and the environment far outweighs the boom and bust cycle that would be part of some land owners’ temporary economic gain.

All the “Grandparents For the Future” are gone now. There is no nuke dump in Allegany Co. But as I sat in the town board meetings when considerations about enacting a fracking moratorium were taking place, I couldn’t help but remember them and notice that the town board sitting at the table in front of us formed another kind of line, one that could also protect us and alter our history in the same way the grandparents did. The Future is now.

It is in their name and memory that I dedicate this column.