The anti-gas radicals are now focused on getting municipalities in both Pennsylvania and New York to enact local laws and ordinances prohibiting or severely restricting natural gas development within their borders.  We have written on this phenomena both here and here.

Jim Willis at Marcellus Drilling News has also documented some of the nonsense taking place.  These pathetic last ditch attempts are what I call Potemkin Laws – artificial constructs designed to fool others into thinking local officials have taken meaningful actions when, in fact, they’ve done nothing but create a temporary obstacle at great risk to the taxpayers who will have to pay the bill for their foolishness.

As Jim notes, the special interest organizations pushing this stuff have tended to rely on a relatively small group of cases, including two cases in New York.  One is the Free Run Gravel Products vs. Town of Carroll from 1987 and the other is the Gernatt Asphalt Products Inc. vs. the Town of Sardinia case from 1996.  There is also a case from Pennsylvania that is often cited, this being the Huntley & Huntley, Inc. vs. Borough of Oakmont decision.

I have, as a planner, written numerous zoning ordinances in both New York and Pennsylvania over the last 35 years.  This has required a working knowledge of zoning enabling statutes as well as case law.  One of things I have learned is to read the law and the cases for myself because every case involves a different set of circumstances.  Until there is a large body of settled case law, it is extremely difficult to draw broad-based conclusions.  Legal theories are simply educated guesses until a broad array of cases addressing different circumstances are resolved.  That is also true here because each of the cases involved includes some special circumstances that make them a poor basis for the types of general conclusions being made by anti-gas special interests hoping to shut down natural gas development.  These include the following:

1.  Neither the Town of Carroll, nor the Borough of Oakmont case, involved a decision to prohibit mining activity community-wide, a fact left out of nearly every commentary on the two decisions, at least with with respect to their applicability to natural gas development.  Both were cases where the courts determined the municipalities could exclude mining from specific districts (from the AR-2 agricultural and residential district of Carroll and the R-1 single-family residential district of Oakmont).  The Oakmont case, in fact, actually resulted in a determination natural gas drilling could take place in the district as a conditional use.  Therefore, any suggestion these cases provide a legal foundation for excluding natural gas development altogether is a very long stretch, indeed.

2.  The Sardinia case also did not exclude mining from the community because the applicant already had already conducted mining operations at several sites within the Town for many years and owned three operating mines.  Indeed, the court noted “the amendments as enacted did not prohibit or terminate existing mining operations throughout the Town — they continued as lawful, but nonconforming uses” and “while mining on existing sites is now a nonconforming use under the Town’s Zoning Ordinance, had the amendments been adopted as proposed, mining on existing sites would have been a specially permitted use.”

3.  The Carroll and Sardinia cases both involved surface mining and not natural gas drilling.  The two uses are vastly different.  Surface mining typically takes place on a particular site as a principal use and is permanent in mature, some quarries continuing in opertation for over a century, with rather dramatic disturbances of the landscape.  Natural gas drilling, by contrast, is a temporary use, typically taking place on leased land where the disturbances are limited in nature and all that remains following drilling are a few tanks and some piping that are nothing more than accessory uses.  Most of the land continues to be used for other purposes.  Moreover, gas drilling usually involves units that extend over several properties rather than a single parcel and, in New York State, unitization is subject to state regulation, limiting property owner options.  None of this applies to surface mining and, therefore, applying rules from it to natural gas development is a bit like trying to put tractor tires on a Volkswagon – thoroughly absurd.

The recently released preliminary draft SGEIS dutifully notes the Environmental Conservation Law “provides that the Department’s Oil, Gas and Solution Mining Law supersede all local laws relating to the regulation of oil and gas development except for local government jurisdiction over local roads or the right to collect real property taxes.”  Importantly, it also says the following in Section 8.1.1.5:

The Department’s exclusive authority to issue well permits supersedes local government authority relative to well siting. However, in order to consider potential significant adverse impacts on land use and zoning as required by SEQRA, the EAF Addendum will require the applicant to identify whether the proposed location of the well pad, or any other activity under the jurisdiction of the Department, conflicts with local land use laws or regulations, plans or policies. The applicant will also be required to identify whether the well pad is located in an area where the affected community has adopted a comprehensive plan or other local land use plan and whether the proposed action is inconsistent with such plan(s). For actions where the applicant indicates to the Department that the location of the well pad, or any other activity under the jurisdiction of the Department, is either consistent with local land use laws, regulations, plans or policies, or is not covered by such local land use laws, regulations, plans or policies, the Department will proceed to permit issuance unless it receives notice of an asserted conflict by the potentially impacted local government.

Applicants for permits to drill are already required to identify whether any additional state, local or federal permits or approvals are required for their projects. Therefore, in cases where an applicant indicates that all or part of their proposed project is inconsistent with local land use laws, regulations, plans or policies, or where the potentially impacted local government advises the Department that it believes the application is inconsistent with such laws, regulations, plans or policies, the Department will, at the time of permit application, request additional information so that it can consider whether significant adverse environmental impacts will result from the proposed project that have not been addressed in the SGEIS and whether additional mitigation or other action should be taken in light of such significant adverse impacts.

Curiously, New York State DEC Commissioner Joe Martens has weighed in on this subject to suggest the courts must decide, even though this subject is never touched upon in the SGEIS.  The SGEIS simply says that if a community raises issues it will consider those in determining environmental impact and mitigation.  It never suggests municipalities can supersede its authority with respect to well siting.  Indeed, it says precisely the opposite: “the Department’s exclusive authority to issue well permits supersedes local government authority relative to well siting.”  It’s hard to get much clearer than this.

Yet, Joe Martens has managed to interject doubt.  During a meeting with a Binghamton Press editorial board he apparently implied the DEC could refuse to grant a permit if any proposed sites for new gas wells were not in accordance with municipal laws and ordinances.  He also said “If we can’t decide on our own, then it may become an issue just between the applicant and the local government.  It may be that the courts will have to decide if something is consistent or not consistent (with local ordinances).”  And, worse, get this: “I think it can be banned in places (within a town),” Martens said. “Whether or not a town can say no everywhere, that’s ultimately something I think a court is going to have to decide.”

While anything can go to court, this seems to be a message more consistent with the voices of his former employers at the Open Space Institute and the Catskill Mountainkeeper than the SGEIS his agency has produced, raising further doubts as to where his true allegiances lie.  The Mountainkeeper, in fact, has been urgently fomenting the radical strategy of adopting plainly illegal local laws and ordinances advocated by the wacky Community Environmental Legal Defense Fund and only slightly less wacky Community Environmental Defense Council (both funded by the Park Foundation, which also funds the Mountainkeeper’s NRDC grandaddy).

Why is Joe Martens opining on legal matters that go well beyond his authority and expertise?  Why is he suggesting, with no facts to support his position, that oil and gas case law will go the same way as surface mining case law?  How can he possibly conclude it can be banned “in places” when his own Department SGEIS plainly says DEC controls well siting, period?   Why is he even entertaining a question on whether a complete ban is possible and suggesting courts will have to decide?  Isn’t the Commissioner of DEC supposed to defend the Department’s position?  Why would he suggest anything other than what the SGEIS says?  The likely answers to these questions are troubling.  They suggest Martens is giving not so subtle encouragement to the fallback strategy of his NRDC/OSI/Mountainkeeper friends to get selected towns in the Catskills, DRBC region and the Ithaca area to attempt to ban natural gas development and take it to court.

It won’t work, of course, because forced pooling and unitization rules that apply in New York, along with clear state policy of controlling well siting will make it clear municipal home rule doesn’t apply, but, in the meantime, it will slow down natural gas development while these communities are taken to court (and it will be Federal Court, not state court, where many of these issues are resolved because national energy policy is at stake).  The selected communities targeted by the CELDF, CEDC, Mountainkeeper, et al will pay the price in legal fees for enacting indefensible Potemkin laws while their funders and supporters (e.g., the Park Foundation, NRDC, et al) march merrily along to there next radical cause leaving this one behind (sort of like the NRDC’s Alar scandal).

Ben Price

Meanwhile, the CELDF will continue to promote its Potemkin laws anywhere it finds a receptive and naive audience.  Their Ben Price recently appeared in Benton Township, Lackawanna County, Pennsylvania to rant against gas and advocate a prohibition based on some dubious theories.  He apparently didn’t share his track record in defending these ludicrous attempts at lawmaking.  Soon, he, too, will be a distant memory as he seeks out greener pastures in places where socialism takes faster root (e.g., Ecuador) but some Townships will, unfortunately, be left with the bill for its foolishness if they are not careful.

Fortunately, other communities are working with the industry to craft reasonable regulations.  The Lycoming County, Pennsylvania, Zoning Ordinance, which is in effect in numerous communities, includes several new sections dealing with oil and gas development (e.g., Sections 3250C.1, 3250C.2, 3250D.1, 3250E.1).  These standards address the kinds of things municipalities can legally regulate in Pennsylvania under its enabling and pre-emption statutes and also incorporate some industry standards.

Although these standards go beyond what is probably legal in New York given that Pennsylvania does not regulate unitization or well siting to the extent of the former, they are still reasonable and workable.  The Lycoming County ordinance is not a Potemkin law but, rather, a real law – the kind that can be produced when communities avoid following the special interest agendas of anti-gas radicals and focus on working with what is an entirely legitimate industry with its own Constitutional rights.  New York communities can also provide input through that state’s unique SEQRA and Public Service Commission processes.  There’s plenty of room to work together but it starts with rejecting these Potemkin laws being foisted on a sometimes unknowing public.