Now that the moratorium is lifted and New York State is on its way toward Marcellus Shale development, anti-drilling groups fundamentally opposed to any natural gas development are trying to stop it with last-ditch efforts at the local level.  Overly strict road laws constitute one of the more common techniques, but some areas are actually looking to ban drilling altogether.  Recently, the Town of Ithaca amended its zoning law to ban gas drilling and now the Town of Dryden (Tompkins County, NY) is considering a similar ordinance amendment.  Banning gas drilling in trendy Ithaca, where it’s unlikely to take place anyway, is perhaps no more than a harmless stunt, but Dryden raises a serious question – is it legal?  We think not.

Municipalities are preempted by both Pennsylvania and New York from regulating aspects of natural gas development.  Attorney Michael P. Joy, of Biltekoff & Joy, LLP, who is also Ph.D level geologist, recently wrote a post on this blog clarifying this issue.  He noted the Constitution of New York State limits municipal authority to only those specific aspects of law that have been granted by the State, and municipalities cannot go beyond those limits. The State Legislature has vested the New York State DEC with the exclusive authority to regulate all facets of oil and natural gas exploration, drilling, completion and production providing that: “[t]he provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”  This leaves the door open for road regulations (preferably, negotiated road use agreements that do unnecessarily restrict other local trucking), but not much else.

We have also written on this subject before in our piece on Potemkin laws where we noted forced pooling and unitization rules that apply in New York, along with clear state policy of controlling well siting, make it quite clear municipal home rule doesn’t apply.  We indicated this will, in all likelihood, slow down natural gas development while communities such as Dryden are taken to court but they are extremely unlikely to win in the end.  The selected communities targeted by anti-gas special interests will pay the price in legal fees for enacting legally indefensible local laws while their funders and supporters (e.g., the CELDF, which has a horrid track record in court) march merrily along to there next cause like helping Ecuador grant constitutional rights to begonias, bugs and bunnies.

Officially, Dryden has not yet passed the ban, but could do so as early as August 2, 2011.  The Dryden Town website implies the board is inclined to pass the resolution with this puzzling statement (emphasis added):

We have authorized Councilperson Leifer to work with Town Attorney Mahlon Perkins and other attorneys to draft legislation effectively banning gas drilling from the Town of Dryden. There are many aspects to be debated and information changes almost as fast as we can absorb it.  We know that the state pre-empts local regulation of gas drilling. We know that the state has reaffirmed local control of land use regulation.  We are researching the extent to which we can regulate the siting of gas drilling.

Would you vote to enact a law you know stands in stark contrast to the plain wording of a statute telling you it has pre-empted your right to do?  Most of us wouldn’t want to run the risk of being personally liable for such a decision after publicly stating we knew what the law was, but it appears some Dryden officials (not necessarily a majority) are prepared to do precisely what they acknowledge they cannot.  They are, of course, being advised by another Park Foundation funded band of lawyers – the CEDC – but one hopes they will think for themselves rather than bend to the special interests of Park.    It is hardly encouraging that the Board says “Accidents and damage have occurred at gas drilling sites in Pennsylvania and other states” and includes a link to an extremely biased website that proudly displays this banner at the top (unusual for Town websites to reference such nonsense):

A public hearing on the proposed ordinance amendment was held on 7/20/11 and drew a mixed crowd of about 130 people. It was clearly evident throughout the meeting that many and, likely most, local residents oppose this ban (see videos below).  A group known as the Dryden Safe Energy Coalition, which believes “energy development is truly an opportunity and we are fortunate that parts of the District may benefit” attended to voice its disapproval of the ordinance by handing out packets of information that illustrated the realties of natural gas development.  The group is also petitioning the Town Board to not approve this ban.  Below is video from residents opposed to the ban.

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Also in attendance was Ben Haith, P.G. a representative of IOGA-NY and the Palmerton Group. Ben attempted to clarify some of the concerns and exaggerations expressed before him.

The next set of videos are from individuals supporting the ban who repeated one fable after another.

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Let’s quickly dispose of a few of these falsehoods:

–         The industry is not safe, hydraulic fracturing is not safe, chemicals are not disclosed. The truth is that, in Pennsylvania alone, close to 3,000 wells have been drilled and safely hydraulically fractured.  Over 15 different states have also confirmed hydraulic fracturing to be safe,  as well as EPA Administrator Lisa Jackson.

–         All of the job opportunities will be filled by out-of-state workers. The truth is that Bradford County, PA, the heart of gas drilling in our region, has the lowest unemployment rate in the Commonwealth (slightly over 5%) despite an economic recression gripping the nation.  A report titled “The Pennsylvania Marcellus Natural Gas Industry: Status, Economic Impact, and Future Potential” was released recently that outlines the tremendous impact Marcellus Shale drilling has had  in Pennsylvania—generating $11.2 billion in economic activity in the state in 2010 and supporting nearly 140,000 jobs.

–         Drilling will over-industrialize the local area and turn it into a wasteland. The truth is that areas with gas drilling remain beautiful while experiencing renewed economic vitality.  Just follow our two separate journeys through Dimock, PA, the so called “industrial wasteland”:  Dimock Residents Determined to Get the Truth Out and Seeing is Believing.

–         Drilling Will Lead to Increased Air Pollution. The truth is that natural gas is a clean burning alternative to other dirtier fossil fuels. A recent study conducted in Fort Worth, TX, also confirmed that natural gas development and production causes no serious impact to air quality.

So, will Dryden go dry or will it act on the facts and the law?  Both offer clear and compelling arguments against the simplistic ban the CEDF is trying to sell the Town to please its funders.  The proposed ordinance amendment  is written so naively as to prohibit not only drilling but also pipelines, gas-related offices, storage or use of gas and all sorts of other things.  It says, among other things, that “No land in the Town shall be used to … transfer (or) store natural gas; or … for natural gas and/or petroleum support activities” and “No permit issued by any local, state or federal agency, commission or board for a use which would violate the prohibitions of this section or of this Ordinance shall be deemed valid within the Town.”  This language would prevent any fuel oil dealer or any propane dealer from locating in the town, along with pipelines, CNG fueling stations or even a gasoline station or office for a company dealing in petroleum products.  Perhaps worst, is the notion that the Town of Dryden can declare a state or Federal permit as invalid.  Does the Town really think it can supersede the Public Service Commission’s Article 7 process relating to pipelines for example?  Well, maybe it should read this case, which says not.

What all of this illustrates is the extraordinarily risky position some comunities are being asked to take by groups such as CELDF and CEDF.  This proposed language is written from the narrow perspective of anti-gas special interests who do not care what collateral damage is caused or who is dragged into their net as long as that net accomplishes their perspective.  Local officials, however, have the responsibility to consider the bigger picture and balance interests.  Here’s hoping the good folks in Dryden do just that and reject this hopelessly flawed ordinance that would ban gas drilling against all evidence, law and reason.  Declaring Dryden dry will only lead to it being flooded with lawsuits and damages.