Local government is the backbone of our democracy, but it can take strange turns from time to time when elected officials surrender to temptations to create a government of men rather than laws.  Members of a community opposed to some particular land use demagogue the issue and elect a new majority on the governing body.  The new board, committed to opposition, turns down the project in defiance of the law, a lawsuit is filed, the board loses its shirt in court, taxes go up to pay lawyers and then the voters, realizing their mistake, throw the bums out and elect a new board, until the next controversial use comes along.  The cycle can continue endlessly in communities with large inflows of new residents determined to exercise their NIMBY rights as the last men and women through the door.  We see this now, as some municipalities attempt to directly or indirectly ban shale gas development.

The move to enact shale gas bans has arisen primarily in areas without much natural gas potential, the obvious strategy being to get those laws enacted in such places first to create momentum to later get bans enacted in communities that do have shale gas.  We have written about this here, here, here and here as well as numerous other times on this blog.  We have also repeatedly explained the role of the Park Foundation in funding the Community Environmental Defense Council and the Community Environmental Legal Defense Fund, the two entities hawking these untested theories throughout the Marcellus Shale region, noting the huge conflicts of interests these organizations have, as well as their wacky ways.

These two organizations essentially march from community to community telling local leaders they can stop shale gas development in defiance of the very state governments that created their municipalities and do so with no risk to themselves or their community.  They brazenly assert the fact a state says a community may not regulate gas somehow doesn’t mean it cannot prohibit it altogether.   It’s simply not true.  They cite case law from a different industry, lose cases regularly and wrongly tell local officials they cannot be sued – all from the secure position of having no contractual liability to the communities they represent.  They are old-time pool hall hustlers, operating without consciences and taking in naive local officials who are led to believe they have previously unimagined powers to overrule every law standing in their way, if they’ll just play the game.

Local officials being approached by these “Fast Eddie” types are well advised to ask a few questions before entangling themselves with the “free” legal advice being proffered by the CEDC and the CELDF.  Consider these five important questions:

1. What makes “free” advice from a special interest group opposed to a project any less objectionable than “free” advice from an advocate? Would it be proper for a town or township to take legal advice on regulating natural gas development from a gas company?  The answer is self-evident, yet we see some elected officials campaigning for reelection and wishing upon a star for a way to appease anti-gas constituencies, taking advice from the CEDC and CELDF.
2. What does the Park Foundation expect for its money in supporting these two organizations and others like them? What are its goals and are they compatible with those of the municipality?  The Park Foundation seems to be funding anti-Marcellus groups everywhere including an “As You Sow” anti hydraulic fracturing campaign, a Common Cause Education Fund project aimed at attacking Marcellus Shale, EarthJustice (the group attacking the Marc 1 pipeline in Pennsylvania), Environmental Advocates of New York (one of the most vocal opponents on DEC’s work on the SGEIS), the Environmental Working Group (another vocal shale gas opponent), American Rivers (the group that has done back to back designations of the Delaware and Susquehanna as “most endangered” due to gas), the Natural Resources Defense Council (the force behind the Catskill Mountainkeeper), the Southern Tier Advocacy and Mitigation Project’s Green Guerrillas Youth Media Tech Collective and the Waterkeeper Alliance, among others.  The Park Foundation is, obviously, on a mission.  Is that mission consistent with those of municipalities facing economic hardship?
3. If the CEDC and CELDF services are “free,” what, exactly, is their obligation to communities to deliver unbiased professional advice and will they put their legal credentials on the line for those communities? Where is there contractual obligation to represent the community and the community only?  Canon 5 of the New York Lawyer’s Code of Professional Responsibility says “the professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free of compromising influences and loyalties.  Neither the lawyer’s personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute the lawyer’s loyalty to the client.”  Given the clear objectives of the CEDC  and CELDF funder(s), how can these organizations possibly meet this standard?
4. If the CEDC, in particular, is a “a pro bono (free), public-interest law firm” as alleged here, how then does it meet Canon 2 of the aforementioned Lawyers Code of Professional Responsibility related to pro bono services? This canon says pro bono legal services are to be provided “at no fee and without expectation of fee to: (1) persons of limited financial means, or (2) not for profit, governmental or public service organizations, where the legal services are designed primarily to address the legal and other basic needs of persons of limited financial means, or (3) organizations specifically designed to increase the availability of legal services to persons of limited financial means“?  If this provision means what it says, the CEDC is not offering pro bono services to “persons of limited financial means” – it is offering free services on behalf of a special interest organization with its own objectives of influencing legislation.  How does that square with the fiduciary responsibilities of elected officials in communities considering bans, none of whom appear to be destitute?
5. What distinguishes the CEDC and CELDF from paid lobbyists? This one is easy to answer – nothing! These two organizations are, plainly and simply, influence peddlers.  They can drape themselves in whatever language their supporters find endearing, but they are no different than any other lobbyist.  There’s nothing wrong with lobbying, of course, but let’s stop pretending this “free” advice is anything other than what it is – an attempt to deliver legislation desired by their funders.

These questions are what every community throughout the Marcellus Shale region should be asking of the CEDC and CELDF, communities such as Rush Township and the Town of Bethel.  And, while they are at it they might ask what kind of track record these groups have in defending what they propose.  Answer – nonexistent to abysmal (see pages 23-25) – but that’s a story for another day.