By Anya Tikka
ELDRED — February 25, 2011 — The Highland and Lumberland Committees on Energy and the Environment hosted a forum about the legal rights municipalities have in regulating drilling for natural gas.
About 160 people turned up last Saturday at Eldred HS on the blustery, cold morning to listen to the two expert speakers, Helen Slottje, managing attorney of the Community Environmental Defense Council in Ithaca, and Ben Price, project director of the Community Environmental Legal Defense Fund in Carlisle, PA.
John Conway, Sullivan County historian and author, moderated the two-hour presentation, opening with comments that the county is in real danger, needing protection from huge industrialization. He read out the questions submitted by the audience.
Slottje recounted how she became personally involved in the issue, although originally she was impartial. In the face of what she called mounting evidence of the dangers of hydraulic fracturing and its devastation of communities in nearby Pennsylvania, “how do we go about saying ‘no’?” she asked.
“The New York State constitution allows us to say no,” she answered, adding local zoning ordinances are an effective way to fight drilling.
“The towns can regulate where the drillers drill, not whether or not they can drill,” said Slottje, “and if you give one (driller) permission to do so, you cannot say no again to anyone.”
She explained that New York State rules allow for regulating industries that may cause disruption to the communities, but they do not allow banning one particular industry, such as drilling for gas.
Some questions concerned the rights and liabilities of those who have already leased their lands, and also the possibility of suing a town for allowing the polluting practices in their environment. There is no clear answer to either question at the moment, since there are no precedents. According to Slottje, some kind of shared responsibility with drillers is a strong possibility,.
The second speaker, Price, had a more community organizer-type strategy based on his years of experience in Pennsylvania.
“I offer a cautionary tale,” he said, referring to state law that has stripped communities of self-regulation, and surrendered home rule authority to industry.
“I envy your Home Rule law in New York,” he said, noting the towns there have more regulatory control over their communities.
He also said, in agreement with Slottje, that local land use regulations are the only effective way to fight the drillers. All the other laws concerning oil and gas industries are preempted by the states’ powers to do as they like, Price said.
Corporations are in effect treated as kind of “super” persons, a right granted to them as the result of the 14th amendment under which they are exempt from many laws and have many privileges private citizens don’t enjoy, according to Price.
Price went on to say the gas drilling industry is exempt from many federal laws protecting the environment as the result of the so-called “Halliburton loophole,” introduced into the Energy Act of 2005. These include the Clean Air Act, Safe Drinking Water Act, and the Superfund Act.
He suggested formulating a future policy that guarantees ecosystems the right to exist, and the individuals living in those ecosystems the right to defend that right.
In Pennsylvania, over 30 communities, most famously Pittsburgh, have passed “community rights ordinances” banning drilling in their communities altogether. Their line of reasoning is to invite the state to prove they are wrong. They say they are not “the colony of the state,” and so have self-governance, and wait for the state to prove otherwise.
Conway closed the meeting by saying “This is not a political issue for Democrats or Republicans, this is about the rights of communities to safeguard their environment and water.”