Senator Seward’s Home Rule Follies
Any student of American history will recall Secretary of State William Seward’s deal to purchase Alaska, lampooned at the time as “Seward’s Folly.” That deal vastly increased our access to natural resources and turned out pretty well in the end, but now another New Yorker of the same name, State Senator James Seward of Oneonta, has embarked on precisely the opposite course. Ironically, Senator Seward seems bent on redeeming the false accusation hurled at his famous namesake by engaging in what can only be described as the Home Rule Follies.
Senator Seward Takes It on the Chin at Oneonta
We were present in Oneonta last month when Senator Seward and three of his fellow elected officials appeared before about 150 of his constituents who were there to question them about Seward’s bill. The Senator, widely admired in most respects, seemed surprised to find his voters not at all happy about his introduction of legislation that would allow individual communities to supersede State law. That bill would, in the name of “home rule,” selectively override the Department of Environmental Conservation’s regulations so as to prohibit natural gas development in one community and, thereby, potentially making it impossible to do in adjoining communities given that geology knows no borders.
Seward took it on the chin from constituents who had actually read the U.S. Constitution and understood the job of the State under a republican form of government – protecting rights. Listen and watch this performance as he says “I’m not sure I’m qualified” to interpret the U.S. Constitution (2:20). This is the same U.S. Constitution he swore an oath to uphold:
The question and answer session got rather heated. Landowners at the gathering overwhelmingly disagreed with Seward regarding his Home Rule bill. They clearly understood, even if he did not, that some things are more appropriately regulated by the State and others by the local governments, depending upon the subject, the ability of local government to do the job and the need for uniformity in regulationds. More importantly, they grasped the idea, seemingly foreign to the Senator, that the purposes of our republic and its Constitution, the one he swore he would support, are to protect the rights of individuals from the grasp of a government at any level. Simply because a given town board falls sway to the appeals of a vocal anti-gas constituency doesn’t mean the state should surrender its own interests or those of the landowners who reside in that municipalities. We don’t elect gods to any positions and we don’t do zoning by applause.
Seward was anxious to shift the subject from natural gas to economic development, as if there wasn’t a gigantic economic development opportunity staring him in the face with natural gas. He proposes, in this video, still another one of those vacuous “economic summits” where everyone talks up the game and does nothing that are so popular with politicos, as if this would accomplish even the tiniest fraction of what one natural gas well pad would do for the area.
As the emcee for the event noted, Seward’s proposed legislation sends a message the area is not open for business.
Seward tried, unconvincingly, to argue the law was unclear or silent on the subject of natural gas development bans, even though New York State has thousands of gas wells and decades of experience regulating it:
The law, however, is anything but unclear as we make clear in this analysis.
Rationalizing Home Rule
The good Senator has, since this meeting, offered additional rationalizations for his proposed legislation but none of these arguments resonate. He says natural gas companies are “used to” dealing with “a crazy quilt of local rules and regulations.” Nothing could be further from the truth and that’s the whole point. New York State has always kept the regulation oil and gas as its own prerogative and has never surrendered any of that authority to localities. The history of natural gas regulation in New York State could not be more clear. He relies upon what he’s been told takes place in Pennsylvania, for example, but has it wrong, as there is nothing in Pennsylvania law that allows a municipality to ban natural gas development from its borders or supersede state regulation.
Seward also says “home rule does not authorize local governments to regulate how natural gas drilling is conducted, but where it is permitted, much like town zoning rules establishing where someone can operate a slaughterhouse, a gas station or any other commercial use.” What he misses is that slaughterhouses, gas stations and commercial uses all involve activities of a more or less permanent nature that place on specific sites of a defined nature that do not depend on bedrock geology, extend over multiple properties or municipalities or involve new infrastructure connections, as natural gas development does. Moreover, since when do communities ban all gas stations or commercial uses? Seward used the example of automobile dealerships when he spoke at Oneonta. Perhaps someone should ask him if he favors the rights of a town to ban such dealerships. He does not appear to have thought this one through.
Seward also criticizes those “who demanded only home rule and local action and their town’s rights when it applied to burning, and shunned statewide involvement, (and now) find themselves opposing local control in favor of state rules.” He offers that he has “tried to maintain a consistent, pro-local control position.” Perhaps someone should remind the Senator that all levels of government have their proper roles; that we don’t ask our town constables to police the Strait of Hormuz anymore than we ask the U.S. Navy to protect the Oneonta Creek. We don’t want our town boards regulating oil and gas anymore than we want the state police to regulate burn barrels. This is the consistency everyone desires – a consistency of form to function. No one seriously maintains local control is invariably better, especially when uniformity of regulation is demanded to ensure the rights of all are protected.
Senator Seward does take note of the Constitution but says “One’s right to use his property for a junkyard must be balanced against another’s right to maintain the value of his residential property, even though the property owner seeks to use the land to extract a higher value from it.” If protecting the value of residential properties were all there to it, and that’s far from the case, he still would still be wrong, of course, because there is no evidence naturally gas development negatively impacts property values for anyone. What is lost in this debate is that advocates of bans are saying some residences should enjoy their property rights while others are denied them. Where is the balance when one neighbor gets to use their land productively subject to certain standards and the other is told they can’t do it all, even if it meets regulations? Is zoning about protecting the rights of incumbents or providing for future needs? The answer is obvious but those who got through the door first want to slam it on others – it’s human nature. This is what the law is supposed to replace with objectivity. Home rule natural gas bans sacrifice property rights and objective law on the altar of public opinion at any given moment, subject to the whims of the most vocal.
Seward’s Home Rule Bill Feeds the Park Foundation Beast
Public opinion shifts with the wind, of course, and Seward, quite innocently, wants it both ways, as do all politicians. He wants to say he’s not opposed to natural gas development while giving his wealthy NIMBY constituents a tool to defeat it. He’s bought into the Park Foundation funded game plan of the Community Environmental Defense Council to build a movement against natural gas development by concentrating on towns with little or no marketable Marcellus Shale gas. The strategy appears to be based on building momentum in communities where economic interests in natural gas development are nil and the threat of challenges are small, with the goal of using these small victories to fuel a campaign that will gather support elsewhere as it builds.
The following map tells the story. Almost all of the communities the anti-gas interests claim as successes are located outside developable Marcellus Shale resources, some even outside the limits of the Marcellus Shale itself:
Notice also, there are only 22 communities that have actually enacted bans. They only claim 21 but we give them credit for still another one in Sullivan County (Town of Lumberland) where this isn’t a bit of harvestable gas. The opposition, of course, likes to say it doesn’t know about the future and always brings up the subject of Utica Formation and other gas sources, but we all know what the controversy is about and it’s Marcellus Shale. Senator Seward knows it, too. Moreover, he knows the proposed New York State regulations effectively exclude most of Delaware County and many other areas that lie within the green border depicted above. Additionally, bans in places like Binghamton, Buffalo and Syracuse are as relevant as banning banana farming. It’s all symbolic and intended to create an image that Upstate and Western New York State doesn’t want natural gas development, even though it ‘s had it for many decades.
Seward is a very dedicated and well-received member of the New York State Senate among both his colleagues and his constituents. Why is he, then, buying into this campaign? Because he apparently thinks it won’t amount to much and he can thrown a bone to a few Cooperstown friends (far from everyone there thinks this way). What he is doing, though, is sending a message, a message that New York State is closed for business, when it should be open. While only small parts of his district may have natural gas, his entire district will benefit from his development of it. Trying to play ball with both sides only enables the anti-gas special interests to maintain the pretense they are winning a status quo battle against the future.