|Frustrated with state politicians, activists are testing the ability of
local government laws to keep the extraction industry out.
Until recently, few people outside of New York had heard of Dryden and Middlefield. But these two towns are now on the lips of environmental activists everywhere as they’ve become part of the battle cry against hydrofracking.
York’s highest court issued a 5-2 decision upholding the legal theory
called "municipal home rule" that has supported scores of municipal bans
on oil and gas production in the state. Dryden and Middlefield's cases
were the first to reach the state's Court of Appeals. The two upstate
communities were being sued by large energy corporations that insisted
they had a right to frack within their jurisdictions although both town had zoning laws in place that prohibited some of the practices involved in hydrofracking.
decision has broad legal implications, not only for other towns in the
state, but for municipalities across the U.S. that are trying to
prohibit fracking. While the ruling holds no legal precedent outside New
York, it's not uncommon for regional and state courts to reference
legal proceedings in other states when handing down decisions.
is a victory for local control,” say Linda Lavine, a Dryden Town Board
member. “It is a victory for liberals and conservatives of all sorts. It
is what democracy is all about.”
At issue in the case was
whether the two towns had the right, under New York's home rule laws —
which allow municipalities the ultimate authority regarding land use —
to use existing zoning laws to limit industry in the town. The
plaintiffs, notably the multi-billion-dollar Anchutz Exploration
Corporation, insisted that state regulations on energy extraction
superseded any town zoning regulations that would either limit or
effectively ban an industry from operating there.
But the court
backed Dryden, and the opinion was even written by Judge Victoria A.
Graffeo, a conservative who was appointed by George Pataki, the state’s
former Republican governor. The New York court considered the case to go
beyond hydrofracking to explore the issue of whether the state’s
villages, towns and cities have the right to enforce land use, and
whether the state has the power to invalidate zoning laws passed by the
“At the heart of these cases,” wrote Graffeo in her
opinion, “lies the relationship between the State and its local
government subdivisions, and their respective exercise of legislative
power. These appeals are not about whether hydrofracking is beneficial
or detrimental to the economy, environment or energy needs of New York,
and we pass no judgment on its merits.”
As this case about
municipal rights is settled in New York, the only question left is
whether Gov. Andrew Cuomo will make a six-year old state moratorium on
new hydrofracking operations permanent. Political observers say Cuomo
will wait until after the 2014 gubernatorial election to do so.
Cuomo has taken progressive stances on a few issues such as marriage
equality and gun control during his first term, he has done so only when
public opinion is heavily weighted to the left. Mostly, he introduces
or folds to centrist to right-wing positions on issues such as corporate
taxes, charter schools and marijuana reform. But as New Yorkers are
almost evenly split on hydrofracking (New York City and upstate voters
favor a ban, while suburban New York voters don’t) Cuomo has tiptoed
around this issue as a clear mandate does not exist to provide him
enough political cover in either direction.
Cuomo has told New
Yorkers that he will wait for the state Health Department’s review of
potential health risks associated with fracking to make a decision, but
this review has gone on for nearly two years. Emily Wurth, water program
director at Food & Water Watch, notes that Cuomo is being
relatively careful among governors on this issue, despite frustrations
that many in the state have with what appear to be delay tactics.
governors, Cuomo and [Maryland’s Martin] O’Malley are notable, as
they’re being cautious weighing the options,” says Wurth. “O’Malley gave
an executive order stopping fracking, but now we’re waiting on a
commission he appointed to give him their recommendation on it,” she
In other states where hydrofracking or sand-oil extraction
is either taking place or being considered, governors either tend to
side with the industry or are mostly silent and ineffectual, as they do
not want to appear anti-business when local economies still seem
fragile. They're also keenly aware of the energy industry's political
weight, knowing that the vast amounts of money it spends can tip the
political balance in a state.
“The oil and gas industry has undue
influence over elected officials in the states,” says Wurth. “They’ve
got a lot of money that they dedicate to lobbying, as well as a lot that
they give to political campaigns. Money has a big impact on the
In California, Gov. Jerry
Brown has resisted efforts to ban hydrofracking in the state, angering
many progressive lawmakers and environmentalists. In Colorado,
Democratic Gov. John Hickenlooper — who once worked in the oil and gas
industry and leans right on environmental issues — has come out against
local fracking bans, even calling for a special legislative session this
summer to pass a bill to stamp them out. If the bill fails, voters will
likely put the question on a statewide ballot this fall.
Dryden and Middlefield decisions come at a critical time. Those fighting
fracking in their communities have realized for some time that they
can’t count on their statewide elected officials to come to the rescue.
With such a positive outcome in New York on the town level, they’re
seeing the battle as shifting to the community level. But how this
strategy works outside of New York is still unknown. It will be up to
each state to determine how strongly they back their municipalities'
zoning and land use regulations.
It Takes a Village, Town, Or City
politicians often talk about the economic boon that extractive (energy)
companies can bring to the state. The fallacy is that such economic
development trumps the environment. But these arguments are
fabrications, according to Deborah Goldberg, managing attorney for Earthjustice, who represented Dryden and Middlefield.
the extractive industry was actually contributing to the long-term
economic wealth of an area, then West Virginia would be the wealthiest
state of the union,” she says.
Goldberg insists that
hydrofracking actually has negative economic impacts on communities, as
many areas that invite temporary industries, such as hydrofracking, to
their towns often suffer both during the boom and the bust that follows.
While the period varies greatly by location, drilling — the labor
intensive component of energy extraction in hydrofracking — is done
after a few years, according to Food & Water Watch.
says the politicians and individuals were too eager to believe the
energy-industry hype when it came to job creation. She says that many of
the economic benefits that came to communities, like those in
Pennsylvania, were short-term and the biggest growth came in “burger
flipping, trailer parks, drugs and prostitution.” She warns that
similiarily disappointing scenarios could play out elsewhere fracking is
Notably, Goldberg says some dairy farmers and carpentry
workers in Pennsylvania were severely impacted by hydrofracking.
Livestock died of various toxin exposures and local trucking companies,
which once took farmers’ milk to market, become consumed by work from
the oil and gas industry. Lumber became a rare commodity for carpenters
as much of it was chipped and used to fill well packs at drilling sites,
“When the oil and gas industry is gone, everyone
departs and they are worse off than before it started, as the industry
drives away all of the sustainable businesses that were there before,”
It’s been this consistent lack of acknowledgment from
state and federal officials that hydrofracking comes at a heavy price —
both economically and environmentally — to communities that have
prompted fracking activists to act locally. And while Dryden and
Middlefield decision may be an early — and even surprising — success,
the effectiveness of going to the local route is yet unknown elsewhere.
But we should soon have a clearer picture as other towns across the
country are beginning to prohibit fracking.
In Colorado, for
example, some towns are already far into the fight. Voters in Longmont,
just north of Boulder, have overwhelmingly voted to both prohibit the
practice of fracking and the massive amount of waste disposal involved
in the process. This despite strong opposition from a new pro-fracking
“issues committee” called Longmont Taxpayers for Common Sense, which is
heavily funded by energy corporations. This initial positive outcome in
Longmont — despite what seemed to be long odds — has already prompted
more towns in the state to adopt similar regulations. Goldberg thinks
one of these cases will be tested in court.
“There are a number
of court cases working their way through the system in Colorado,” she
says. “As litigation proceeds, there are simultaneously about 15
different ballot initiatives that have been composed that are at various
stages of getting signatures in order to get on the ballot. And even if
a court says they don’t have the authority to ban hydrofracking, the
people in Colorado can always get together and change the state
But a constitutional ban might not be a path for
Coloradans to take to prohibit fracking in their communities. A
Quinnipiac poll back in November suggests that a clear majority of the
state’s residents are against banning the energy extraction practice,
making a state constitutional change unlikely.
against fracking are also taking place in California, Florida, Illinois,
New Mexico, North Carolina, Ohio, Pennsylvania, and Texas among other
states. Dallas, a city ironically at the heart of the oil and gas
industry, has been successful in keeping hydrofracking outside the city
limits by requiring a 1,500-foot setback between wells and homes.
says there’s lots of opportunities in other states to keep
hydrofracking out of their communities “as long as there’s a system in
place that allows zoning.”
“In more densely populated areas,
there are greater opportunities for political organizing than in less
populated, rural areas, which may also be more economically depressed
areas,” she says. “So the wells get pushed to the areas where the people
are less able to fight.”
She notes that unincorporated areas,
where there is no well-defined provisions for zoning, hydrofracking
could continue without much, or any, pushback from local residents. And
when a gas company’s mineral rights agent knocks on a door, it’s easy
for a rural landowner to think there’s no harm in selling the drilling
rights, especially when there’s no strong community to discuss the
potential personal, health and environmental consequences. In such
places, the fight against hydrofracking becomes much more of an
educational and environmental justice issue.
Josh Fox, the
director of Gasland, the 2010 documentary that first drew open the
curtain on hydraulic fracturing, also points out that it can be hard to
get a consensus in rural areas where residents may be paid large sums
for drilling rights.
“When I started working on the film, it was
already a very contentious and controversial issue,” he says. “So, in
the Upper Delaware River Basin, there were a lot of people who wanted to
lease their land to make money off of this. And it was surprising how
quickly that broke down along certain cultural lines, and it exacerbated
political tensions that were there for a long time... and there were a
lot of people who wanted their money and who were willing to put their
neighbors in jeopardy and put all of us in harm's way.”
How Not to Pick a Fight With a Fracker
the New York Court of Appeals ruling is only binding in New York, it is
not unprecedented for courts from other states to take guidance from
outside findings, says Goldberg. She believes that the New York court
used land-use decisions from other states to help it come to a
consensus, even though it was part of the the court’s majority opinion.
would certainly expect that courts will look at what its sister courts
have done in making its decision. While they're not binding, they could
be persuasive,” she says.
Goldberg cautions that municipalities
can’t write zoning laws banning hydrofracking that are unreasonable,
arbitrary or capricious.
“The distinction is between regulating
land use and regulating industry,” she says. “States clearly have the
power under state laws to regulate the industry, but it's an entirely
different subject matter in policies and purposes than regulating land
use. Both of those legal regimes — one state and one local — can operate
harmoniously at the same time if the state regulates how activities are
conducted and the locality regulates where they go.
should not think that what they can do is target the industry,” she
continues. “When they do that, they're likely to get in trouble. So what
a locality has to do is make a decision whether it wants heavy industry
or not. And if they do want heavy industry, they must make sure that
their zoning laws apply equally to the oil and gas industry as they do
Cliff Weathers is a senior
editor at AlterNet, covering environmental and consumer issues. He is a
former deputy editor at Consumer Reports. His work has also appeared in
Salon, Car and Driver, Playboy, and Detroit Monthly among other