The New York Times floated something of trial balloon from the Cuomo administration last week, publishing a piece suggesting the governor may soon release the details of a plan that would allow some of the state’s landowners the opportunity to finally produce their minerals, while leaving other folks out.

Needless to say, it got a lot of attention – with some supporters seeing it as evidence that New York may be finally ready to proceed with Marcellus development. Others, of course, had a very different take – many residing in counties that, for whatever reason, didn’t make Cuomo’s cut (actually the DEC’s cut).

The Times article and remarks of Gov. Cuomo made on Fred Dicker’s radio show (30:35) last week have generated lots of comments and raised more than their fair share of questions. The two principal elements of the supposed deal, on which Cuomo was nothing less than officially equivocal in the Dicker interview, are 1) the restriction of natural gas development to certain geographies and 2) geography aside, development only made available to communities that “want” it.  Both raise troubling issues for industry and landowners, not to mention inevitable political difficulties for the governor himself — although it’s also possible, I suppose, it could also be the best thing since Lee Iacocca came up with the Mustang. Let’s consider the issues.

How Deep Is Your Love for Marcellus Shale?

The Times royally confused matters with the second and third paragraphs of the article:

The plan, described by a senior official at the State Department of Environmental Conservation and others with knowledge of the administration’s strategy, would limit drilling to the deepest areas of the Marcellus Shale rock formation in an effort to reduce the risk of groundwater contamination.

Even within that southwest New York region — primarily Broome, Chemung, Chenango, Steuben and Tioga Counties — drilling would be permitted only in towns that agree to it and would be banned in Catskill Park, aquifers and nationally designated historic districts.

While the report later said the plan was to restrict development to areas where the Marcellus is at least 2,000 feet deep, that wasn’t mentioned until the 14th paragraph. Depth aside, counties missing from the list included Cortland, Delaware, Otsego, Sullivan and Tompkins, all of which are underlain by the Marcellus Shale and many, if not all, of which have leases in place.  Everyone in those counties is now left to wonder: “What happened to us?”

State regulators believe that by limiting drilling to areas where the Marcellus Shale is at least 2,000 feet deep, risks of contaminating the water supply with toxic chemicals will be reduced. Regulators would require drillers to maintain a 1,000-foot buffer between water sources and the top of the shale formation.

Water Table Depth Compared to Fracturing Depths

Location by Applause?

Attorney Daniel Leary, writing on this blog, coined the phrase “zoning by applause” and a variation of this – location by applause – seems to be what the Martens crew at DEC is floating as a possible way to split the baby on natural gas development.  If true, this is a complete sellout of landowners in towns where politically correct local officials are saying “no” without regard to law, property rights and science.

Worse, the article suggests it isn’t merely saying “no” that leads to a stripping away of those rights, but merely a failure to say “yes.”  This is nothing less than astounding.  We have articulated numerous times, on these pages, the reasons just saying “no” are both unworkable and just plain wrong.  But, the DEC people are, according to the Times, saying a landowner’s property rights are actually dependent on community leaders saying “yes.”

Is there any precedent for such an absurd policy with regard to any other land use or natural resources development issue?  How is this reconcilable with a state policy encouraging development of resources based on science?  How does this preserve property rights when there is, effectively, a presumption natural gas development shouldn’t take place until local officials say they want it?  It turns every principal of law on its head and throws science completely to the wind by requiring local officials to act in this manner.  But, the law of land use doesn’t work that way. Or, at least, it shouldn’t.

Restrictions on development are a derogation of the common law and, therefore, must be strictly construed to the least possible restriction of rights that fits the regulatory need; justification for the restriction must be based on science.  The proposal coming from the DEC, nevertheless, says you have no rights until local officials first give them to you and those town politicos “don’t need no stinkin’ badges” or reasons for saying either “yes” or “no.”  This is, to put it delicately, a bastardization of the law.  It completely separates science from the decision-making and makes it 100% political, with landowners’ rights subject to the whim of elected officials.  This is America?

The Times article includes the following map:

Developable Areas in NY under Cuomo’s Location by Applause Proposal

Notice there is only one area with a significant number of contiguous communities that have proactively said they want Marcellus development.  Obviously, others will follow and a campaign is underway to secure as many as possible.  But, is it fair to ask communities that have stood firm against the Slottje/Park Foundation assault to now take an extra step to put themselves on the line politically when they know there may well be powerful constituencies within their communities who are opposed?  Why should they have to take a bath when it’s all supposed to be based on the science anyway?  Why should they put themselves on the line when the state policy is already forthrightly stated as to develop the resources.

Are mineral rights in those communities where there is plenty of natural gas to be trampled because their local officials faced pressure from small lot owners in areas of their towns without natural gas and they were reluctant to antagonize them?  It seems this proposal would do just that.  If your property is not in a community where the overwhelming majority favors natural gas development, your rights are shot to smithereens.  This is expressly unfair and a complete sellout to the interests of anti-development forces in areas such as the Finger Lakes and the Catskills where well-funded groups, such as the NRDC, with connections to Martens and the DEC advisory committee, seek to keep development at a distance.

Is Someone Shooting Cuomo in the Foot?

Certainly, the sudden change of opinion by some organizations, suggests a deal was made by DEC with certain parties, or was it?  Here’s what the Times quotes Robert Moore, Executive Director of Environmental Advocates of New York and member of the state committee supposedly advising on the development of regulations, as saying:

“We recognize that gas is going to be part of our energy mix and it’s preferable to other types of fuels that are out there,” said Rob Moore, executive director of Environmental Advocates of New York. “So it’s not really an option to say ‘no way’ to natural gas. But we’re not in a rush to see this resource extracted in New York.”

Mr. Moore called the Cuomo plan, which is being developed by the Department of Environmental Conservation, an “interesting idea.”

“I’d say it’s encouraging that D.E.C. continues to look at these issues very thoroughly and carefully, but there are a lot of questions about how this would roll out,” he said. “Can communities that want to opt in handle it? Is there enough emergency response in the region to handle well explosions? Spill response?”

In response to the June 13th story, “Cuomo Proposal Would Restrict Gas Drilling to a Struggling Area,” I’m writing to clarify Environmental Advocates of New York’s position regarding industrial gas drilling by means of fracking.

Environmental Advocates has consistently said New York State is unprepared to provide safe oversight of high volume hydraulic fracturing, or “fracking.” Nothing has been presented to change our minds about that, certainly not the recent story about restricting drilling to a portion of the state. We firmly believe New York is not ready to move forward with fracking— statewide or in a limited number of counties.