Marcellus Shale

Will Dryden Go Dry with This Taking?

Henry S. Kramer
Co-founder, Dryden Safe Energy Coalition (DSEC)

As a resident of the Town of Dryden, I read with interest the opinion of Judge Rumsey in the Anschutz v. Dryden suit.  While this appears to be a temporary victory for the current political leadership of the Town (Judge Rumsey did throw out the overbearing claim of the Town that its local zoning ordinance would override federal and state permits), it is only the first round in what is likely to be a long legal battle.  A good analogy is that the Dryden team has scored a field goal in the first quarter of an NFL game.  So, when the anti-gas people claim a great victory, they claim too much.

What can happen next?  Anschutz could appeal the zoning ruling to the Appellate Division, which is an appeal by right.  If they lose there, they can seek to take the case to New York’s highest court, the Court of Appeals.  Or, they could accept the court’s decision (state Supreme Court decisions set no binding precedents) on the zoning issue.  That could open the door to an immediate suit for a taking of Anschutz’s entire property rights (their leases) in Dryden, a suit that could entail a claim for five million dollars.

Yet another possibility exists.  Anschutz and other industry organizations may simply pull out of New York State rather than deal with a patchwork quilt of ever changing local regulations.  That would leave energy jobs and energy prosperity to neighboring Pennsylvania and nearby Ohio.  For the 22% of Tompkins County residents (Dryden is in Tompkins County) who live at or below the poverty line, the victory of the environmentalists would consign them to long term poverty, subtracting many high paying jobs from the local economy.  I doubt very many of the very poor will find keeping New York rural, bucolic, and poor a very good result.

The “home rule” debate in New York overlooks a very important fact about local governments.  It is an undisputable fact that local governments in New York lack the checks and balances and separation of powers found in state and federal government.  A local activist majority in control of a town board (many town boards have five seats, so a board can be controlled by winning just three seats), determined to run wild with regulations and bans would go unchecked until at least the next election.   Town boards mix legislative and executive power and are “unicameral,” there is no second house built on a different majority to check them.  The result can well be the tyranny of a local majority running roughshod over the rights of landowners and minorities.  For most of our history this did not matter, local governments concerned themselves only with truly local interests and minor local concerns.  The only remedies a citizen has against a runaway town board exceeding its powers is to move away or to litigate, remedies that require major life changes or lots of money.

There is a very definite element of the hypocritical in natural gas opponents (virtually every member of the Tompkins County legislature heats with fossil fuel).  Many anti-gas advocates live on the grid and consume fossil fuels.  While they deplore energy development as unsafe and poisoning the water, they continue to use the product, provided it is produced elsewhere.  They expect gasoline, propane, and natural gas to be available to heat their homes and get them to work.  At the same time, they oppose almost all aspects of energy development except wind and solar, good alternatives, but not economically viable or practical to meet our nation’s needs.  The dependence on foreign sources of energy complicates U.S. foreign policy and can involve us in putting our servicemen and women in harm’s way.

One of the ironies of the current controversy in New York is that the state has in its Department of Environmental Conservation a very tough regulator who will impose some of the highest standards for natural gas development in the nation.  Yet, that is not enough for natural gas opponents.

Dryden’s anti-gas groups say they want to “protect” residents against the evils of natural gas.  But, while they are busy protecting themselves, they refuse to recognize that they are stripping some of their fellow residents of individual choice in the matter by barring leases and without any compensation.  There is a loss of individual freedom and property rights which simply does not seem to matter to the anti-energy people.  But, if they were to pay the landowners for the takings, as a general charge on all residents, they would be facing a liability far beyond their ability to pay.  So, as with some foreign countries in the past, they have just expropriated the property of others without paying.  For them, might makes right and their ends justify the means.

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The Dryden Safe Energy Coalition favors natural gas development, but only development which carries adequate safeguards and where the risks of development are carefully evaluated with data and not fear and where risks are balanced against economic opportunities.  Many of the current bans and moratoriums have been created to kill natural gas development “by a thousand cuts.”  That plan may yet be successful but reminds of the old adage, “be careful what you wish for.”

For those of us in the southern tier of New York State our best opportunity to revitalize our economy may be lost.  For a state mired deeply in economic problems, turning its back on energy development may leave us an economic backwater.  It certainly sends a message not only to the energy industry but to all potential employers considering operations in New York that our state is hostile to business and not a place they will want to be.

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