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Ferguson: The home-rule fight against fracking

An oil pump jack in a field adjacent

An oil pump jack in a field adjacent to a sub-division near Fredrick, Colo. (Dec. 5, 2012) Photo Credit: AP

In recent years, hydraulic fracturing has emerged as one of the most contentious issues in the New York State. But despite all the attention fracking has received, Albany has failed to address the issue in a meaningful way. The legislature hasn't passed a single bill to regulate the practice, and the DEC's proposed rules and regulations have either been bounced back to the department for revision or scrapped altogether. Since taking office, Gov. Andrew M. Cuomo has been a deer in the headlights on this issue, incapable of making a decision that might offend either the (very rich and very powerful) gas corporations, or the (very visible and very vocal) opponents of fracking.

But while Albany has been in a state of paralysis, the center of power may have shifted, irreversibly, to an unlikely location: Town Hall. Over the past three years, municipalities in upstate New York have created a legal landscape that may eventually cause gas corporations to leave the state. According to the FracTracker Alliance, more than 150 towns have enacted local bans or moratoria that prohibit fracking since 2011. Taken together, these ordinances bar shale gas extraction on more than 20 percent of the land that sits atop the Marcellus Shale.

While almost three quarters of these ordinances will expire after a year or two, that doesn't mean these towns will be open once again for fracking. Ostensibly enacted to give towns "time to prepare" for fracking, moratoria often end up giving towns time to enact strict fracking prohibitions.

And the municipal anti-fracking movement shows no sign of slowing. A restrictive ordinance of one kind or another has been enacted at a rate of more than one a week for the past two years. It's too soon to accurately predict how many municipalities might eventually decide to reject fracking -- either because local officials deem it too dangerous or believe it is incompatible with the character of the town or may harm other economic sectors, such as agriculture and tourism.

Moreover, local laws can have an impact beyond municipal borders. The infrastructure necessary to support natural gas extraction -- the gathering lines, the pipelines and the endless convoys of heavy truck traffic -- can only function efficiently if they are unimpeded by legal roadblocks. Gas corporations are used to playing on an open field, not stepping gingerly around a crazy quilt of local laws that may differ from one town to the next.

But do municipalities really have the right to ban fracking? Can rural towns, in effect, make policy for the state? A few years ago, most lawyers assumed that local communities were powerless because New York's Environmental Conservation Law 23 gives the state sole authority to regulate the industry. The law has been on the books for years, but it had never been tested in court.

When fracking became a hot issue, a few enterprising attorneys took a closer look at the statute and concluded that zoning ordinances do not constitute industry regulation. Towns may not have a right to prescribe setbacks or casing requirements for gas wells, they argued, but they still have the right to control development.

The limits of the law have now been tested in three lawsuits, and in each instance the court upheld the town's right to ban fracking; two of those cases were recently upheld on appeal.

Even if New York were to enact a state law that explicitly supersedes local land-use laws, it still wouldn't be clear sailing for the gas industry. "Home rule" isn't a right granted by legislation, it's guaranteed by New York State's constitution.

Bruce Ferguson is a member of Catskill Citizens for Safe Energy, an all-volunteer, grassroots organization.