This is our 100th post at the EID Marcellus blog, a terrific milestone indeed, but one made infinitely more satisfying by the subject – the defeat of the attempt by the Catskill Mountainkeeper and its gloomy band of anti-gas special interest allies to extend New York State’s moratorium on natural gas development in the Marcellus Shale.

Such development demands hydraulic fracturing and has been on hold while New York has been finishing up its Supplemental Generic Environmental Statement as a foundation for new regulations that will allow drilling to go forward.  Governor Cuomo has told his Department of Environmental Conservation to get the job done but the Mountainkeeper gang of bluebloods from Lew Beach and Woodstock got the General Assembly to pass a moratorium extension and they were desperately hoping the New York Senate would sign on, thereby further delaying things.

They lost and now they have come down off the mountain to regroup.  Take a look at the message they are sending out (emphasis and “no symbol” are both ours): Whether these communities are “showing that it can be done” remains to be seen as none of these local laws and ordinances have been successfully defended against legal challenges.  Indeed, they are being promoted by two wacky groups that have no track records of success.  The Catskill Mountainkeeper’s descent into use of such disreputable tactics says a lot about where things stand.  The anti-gas special interests are increasingly desperate and throwing everything they’ve got against the wall in hopes some of it, any of it, will stick, but none of it is. Hence, the shrillness increases.

Let’s take a look at the two groups promoting these ridiculous local laws and ordinances that fly in the face of state law in both New York and Pennsylvania.  The flakier of the two (it’s very hard to choose) is the Community Environmental Legal Defense Fund (CELDF), which proudly says the following about itself:

The Legal Defense Fund has now become the principal advisor to activists, community groups, and municipal governments struggling to transition from merely regulating corporate harms to stopping those harms by asserting local, democratic control directly over corporations.

It’s anti-capitalist, socialistic mission having been forthrightly declared, the CELDF proceeds to offer model local laws and ordinances that supposedly allow municipalities to do such things as:

• Nullify the USA Patriot Act (Federal legislation).
• Deprive all corporations doing business in the community of the protections of the Contracts Clause or Commerce Clause of the United States Constitution.
• Ban corporations from engaging in agriculture and ban persons from using corporations to engage in agriculture.
• Prohibit farmers from using genetically modified seeds.
• Prohibit use of a corporation or syndicate to engage in product retailing within the Township

Worse, the CELDF (funded in part by the Ithaca-based Park Foundation, which has also funded Josh Fox, Mother Jones, the NRDC and every other imaginable left-wing fringe group) “has assisted communities to craft and adopt new laws that change the status of natural communities and ecosystems from being regarded as property under the law to being recognized as rights-bearing entities.”  It assisted “delegates to the Ecuador Constitutional Assembly to re-write that country’s constitution” and “Ecuador became the first country in the world to codify a new system of environmental protection based on rights, leading the way for countries around the world to make this necessary and fundamental change in how we protect nature.”  This constitution was part of a power grab by another Fidel Castro wannabe, revealing the kind of environmentalism and government the CELDF desires.

Get the picture?  These are profoundly radical people proposing profoundly radical things.  They also do profoundly silly things.  One example is the Pittsburgh Community Protection from Natural Gas Extraction Ordinance, which was adopted with much fanfare.  The City of Buffalo did the same and, as an industry friend said to me recently, that’s about as meaningful as prohibiting the planting of orange groves in either city – one has as much chance of happening as the other.

This, of course, is part of the CELDF strategy, getting communities with nothing at stake to adopt plainly illegal ordinances in the full knowledge no one is ever going to challenge them.  It generates tons of publicity for attention-seeking politicians and CELDF with no risks to either.  But, pity the well-meaning local official in some small community who imagines he or she can do the same because Buffalo and Pittsburgh did it.  They’ll get the lawsuit.  CELDF may help, but the results aren’t pretty (more on that below).

The other group advocating such nonsense is the Community Environmental Defense Council, Inc. (CEDC).  It is a “public interest law firm,” one of those entities serving as the advance guard for trial lawyers hoping to get rich on lawsuits against deep-pocket corporations.  Gee, that couldn’t happen here could it?  Maybe Todd O’Malley, the Scranton attorney leading protests in search of new business suing gas companies would know.  The CEDC says it “relies entirely upon donations and grants from foundations and individuals that desire to see their communities and the environment receive top notch legal representation.”

Interestingly, this organization is based in Ithaca, NY (where have we heard that before?) and is ALSO funded by the Park Foundation.  So, not only is the NRDC funded by the Park Foundation, but also the CELDF and CEDC.  The NRDC is, of course, the force behind the Mountainkeeper, and is headed by John Adams, Board member of NRDC, the Delaware Riverkeeper and the Open Space Institute as well as the father of Mountainkeeper Ramsay Adams.  Park’s footprints seem to be everywhere (and they are).

And, what is the CEDC up?  Well, pretty much the same thing as the CELDF, with a little more polish.  It has guided the Town of Ulysses (just outside Ithaca) in developing a local law that without specifically naming it, prohibits hydraulic fracturing in the Town using the absurd justification that “there is not a single New York State case that says that municipalities can not achieve a ban using land use laws.”  Well, there is nothing that says a town can’t ban corporations, overrule the Patriot Act or prohibit corporations from owning farms or retail stores, either.  New York’s Municipal Home Rule Law says “every local government shall have the power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law relating to its property , affairs or government.”

Home rule, in other words, is not carte blanche to do whatever a municipality wants.  Local officials are still constrained by the general laws of the state, although you wouldn’t know it from the CEDC’s self-serving legal analysis.

So, how is all this working out?  Not so well.  The CELDF tax return for 2009 is very revealing.  It includes a “Public Interest Litigation Summary” that summarizes the results of various legal proceedings in which the CELDF was involved that year, which included defending three sets of ordinances it bestowed on naive communities willing to look the other way when it comes to the law.  It lost all three challenges.  One was a Blaine Township, Washington County anti-corporation ordinance that was challenged by Range Resources in Federal Court.  Here is what the CELDF says about that:

“..the federal District Court judge ruled that the ordinance fees violated state preemptive schemes, and that the natural gas corporation was entitled to the full range of constitutional “rights” possessed by natural persons. The municipality chose not to appeal the ruling.

Public interest component: Adopted with the support of a majority of the community, the Legal Defense Fund represented the municipality to ensure that the community’s ordinances were recognized and enforced.

You can read that as “we got our butt kicked in Federal Court and liked it – you’ll like, too, so why not join us?’ This is the sorry record of these Park Foundation supported radicals.  It shouldn’t command respect from anyone familiar at all with municipal law and, typically, doesn’t.  Unfortunately, some journalists and a handful of local officials are susceptible to their appeals but that is only until someone says “the emperor has no clothes” and we’re saying it, among others.

Sadly, the Catskill Mountainkeeper doesn’t get it and never will, because it is essentially a NIMBY organization allied with the Park Foundation in trying to maintain upstate New York and rural Pennsylvania in perpetual “pastoral poverty,” as Daniel Henninger put it, so their benefactors can have a private playground here amongst us serfs.  The good news is that they are losing and their capitulation to reliance on such disreputable Park Foundations cousins as the CELDF and CEDC proves it.  Pitiful!