Another Flawed Natural Gas Moratorium with No Legal Foundation
There was a public hearing in Chenango, New York (Broome County, NY) last week regarding a possible moratorium on natural gas development. The crowd was split but land use law cannot be crafted with applause meters and the town should review the Binghamton decision from last week before it jumps off the cliff.
There was a public hearing held last week in Chenango, New York (Broome County). The hearing was for the purpose of discussing the potential enactment of a moratorium. Given the recent overturning of the City of Binghamton’s ill-advised moratorium, the town would be well-advised to take a breather with respect to its own actions and read up on the law. The Binghamton’s moratorium was thrown out by the Court because one can only be enacted where there is a “dire need” and a “crisis”, said Judge Lebous and he found:
There can be no showing of dire need since the New York State Department of Environmental Conservation has not yet published the new regulations that are required before any natural gas exploration or drilling can occur in this state. Since there are no regulations, no permits are being granted. Second, since the DEC is not yet issuing permits, there is also no crisis nor a crisis condition that could possibly be shown by the City at this time.
Chenango town officials would be foolish to potentially spend taxpayers money and time enacting a moratorium that plainly cannot meet the test laid out in the Binghamton decision. Will they do so? It’s not clear.
Several people spoke at the hearing and the moderators set it up so it was alternating between pro-gas and anti-gas opinions, which is a strange way to gather public opinion, but perhaps a fair way to gauge the quality of arguments on both sides. If the latter was the town’s intent, perhaps local officials should consider the validity of one the most frequent arguments cited in support of a moratorium; that Chenango is this small, peaceful, quiet town that should never have to endure change connected with natural gas development. A little research reveals Chenango is the third largest town in Broome County, with 11,252 people and a population density of 330 persons per square mile. It also has 194 commercial properties and 9 industrial properties. And, Routes I-88 and 12 just happen to run through the middle of it. Hmm…
We were more interested in what natural gas advocates had to say, of course. An official of Laborers International Local 785, a union representing 800 skilled workers in the area, for example, spoke and discussed the ample jobs the natural gas industry brings to an area. He told the board not to enact the moratorium and to just let the Department of Environmental Conservation (DEC) do its job. The job he refers to is the use of experts to monitor the natural gas industry while adjusting the rules and regulations for hydraulic fracturing based on the Supplemental Generic Environmental Impact Statement.
The next man to speak against the natural gas moratorium was a Chenango resident who has a business providing environmental/energy consulting services to several enterprises in the area. He argued he will not be able to continue working if the moratorium is enacted. He said he understands the numerous unintended consequences a moratorium will have on businesses in a community. This consultant articulately demonstrated why the area needs to encourage businesses to come to the area, instead of pushing them out.
Attorney Scott Kurkoski spoke against the moratorium on the basis of the law. He told the board they have plenty of time to do whatever they feel needs to be done without enacting a moratorium. He suggested, however, if they were to enact the moratorium, it would only be a political statement, yet would do irreparable harm in chasing out business. It would, thus, be a fiscally irresponsible action. He also noted, on the positive side, the 8% reduction in Windsor’s school taxes as a consequence of natural gas pipeline development in that community. It was, to say the least, a very compelling argument.
Bob Poloncic, Vestal Landowners Coalition leader, agreed with Kurkoski and told the board the coalition is set up to educate the public. The coalition has been doing this for a long time and working hard to help people get answers to their questions. He urged the board to go to the other meetings and talk to boards in Pennsylvania to discuss what natural gas has done for their communities. He also noted Binghamton University had come into the area and changed the “quiet” atmosphere, too. The Vestal Parkway also affected the serenity of his community, but the business and opportunities that came with those things were worth the price.
Attorney Rob Wedlake, of Hinman, Howard and Kattell, LLC., spoke next. He said Chenango already has a zoning ordinance that prohibited natural gas exploration, so it was completely pointless to enact a moratorium, especially given there is no urgency with respect to permits being issued by the state. He also noted a requirement under moratorium law in New York that such legal devices not disproportionately burden one set of landowners. Given the leasing activity in the Town of Chenango, that would be a hard test to meet. One hopes the board listened to Mr. Wedlake, as he is the attorney who won the case overturning Binghamton’s moratorium.
County Legislator (and Morgan horse farmer) Steve Herz (District 9) spoke shortly after Wedlake. He discussed the JLCNY Career Expo held earlier in the year, noting 2,300 people attended the job fair and it was a huge success, reflecting the tremendous need for natural gas development in the area that a moratorium would discourage.
Another individual spoke up to say the DEC is very strict when it comes to regulations. He indicated their rules will need to be followed to a tee without any exceptions and urged the town to promote the use of domestic energy, which natural gas offers as alternative to foreign sources.
Another man described a moratorium as a nail in the coffin for the local economy. He wants to raise his family in the area and is scared he won’t be able to keep them close because the job market is so slim. He is a teacher in Owego and told the board they have had four years to work on anything they needed to accomplish. Natural gas development is nothing new and the board should be prepared enough by now to not require a moratorium.
Rick Tarnoski, a former biologist with the New York State DEC who now operates his own testing service, also supported the view the DEC can and will do the job. He also stated “the sky is not falling.” Most interestingly, he reflected on the fact he had tested water in Dimock, Pennsylvania 10 years ago and experienced flameouts from methane migration back then, long before natural gas development came to that area. He further noted having sampled hundreds of wells after hydraulic fracturing had taken place in the vicinity of water wells and found no evidence of impacts on drinking water. Commenting on the smiling faces in Pennsylvania from natural gas development, he urged the town not to put up a “closed for business” sign with a moratorium.
This man (see video following) pointed out there are many other things to protest. He said landfills, for instance, contain hideous chemicals and in high concentrations, but no one is out there protesting landfills.
Another woman spoke in favor of natural gas development and against the moratorium, explaining she only owns 4 ½ acres, so she she isn’t going to make a lot of money from natural gas. She said she supports natural gas for a different reason. She supports the good of the people and wants Broome County to prosper. She doesn’t want Chenango to use her tax money to attempt to do something they don’t have the means to accomplish. Her message was, simply put, to let the DEC do its job.
Still another individual brought up the legality of the moratorium based on the existing zoning code already prohibiting most natural gas development. He pointed out there is no good reason to enact a moratorium in that circumstance. Moreover, Chenango also already has a road use protective law in place.
The entertainment of the night was Craig Stevens, the perennial natural gas gadfly who shows up everywhere there’s a camera. Getting between him and a video camera puts anyone in danger of being trampled, in fact.
Stevens took over Craig Sautner’s routine and brought in a brown jug of “water” to show to everyone – a tried but untrue scare tactic if there ever was one. He even went so far as to call members of Dimock Proud liars. I found this particularly interesting as he was implying people in Dimock do not support natural gas development and I recall a meeting in Dimock where Mayor Matt Ryan was laughed out of the room. The people in Dimock are extremely supportive of natural gas and are upset people such as Craig have given Dimock such a bad name. He continues to do so by flaunting a jug of brown water all over New York State.
One thing was clear at the end of the hearing; those in support of natural gas were experienced and professional making one valid point after another. Very few of the people speaking against natural gas had traveled to Pennsylvania or been on well site tours. They were regurgitating what they have heard from others in the business spreading fear about natural gas development. I doubt it worked, especially after Binghamton.