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First Amendment to the United States Constitution
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
NY-CONFLICT OF INTEREST GENERAL LAW
OTSEGO COUNTY CODE OF ETHICS
SEE ATTACHMENTS AT BOTTOM OF PAGE
Community Environmental Legal Defense Fund
Mission Statement
“Building sustainable communities by assisting people to assert their right to local self-government and the rights of nature.”
Why this?
We believe that we are in the midst of an escalating ecological crisis, and that the crisis is the result of decisions made by a relatively few people who run corporations and government. We believe that sustainability will never be achieved by leaving those decisions in the hands of a few – both because of their belief in limitless economic production and because their decisions are made at a distance from the communities experiencing the impact of those decisions. Therefore, we believe that to attain sustainability, a right to local self-government must be asserted that places decisions affecting communities in the hands of those closest to the impacts. That right to local self-government must enable communities to reject unsustainable economic and environmental policies set by state and federal governments, and must enable communities to construct legal frameworks for charting a future towards sustainable energy production, sustainable land development, and sustainable water use, among others. In doing so, communities must challenge and overturn legal doctrines that have been concocted to eliminate their right to self-government, including the doctrines of corporate constitutional rights, preemption, and limitations on local legislative authority. Inseparable from the right to local self government - and its sole limitation - are the rights of human and natural communities; they are the implicit and enumerated premises on which local self government must be built.
New York
Communities and many environmental groups in New York State feel elated about recent court decisions upholding New York local municipalities zoning-out shale gas drilling and fracking under their constitutionally recognized home rule authority. We wish them well but…
We’re not so excited.
Communities in New York have received, from the governing elite (in this case, the courts), only a respite. One (or more) of three possibilities is up and coming, and none of them will vindicate communities’ rights to exercise local self-governance: 1. Gas and oil corporate attorneys will appeal the case and the “higher” court will rule that the state’s laws preempt the exclusionary zoning, which amounts to a banning; 2. the corporate attorneys will sue under the “takings” clause of the 5th amendment for lost profits from gas resources and infrastructure, and the courts will make municipalities pay “damages” to frackers intent on legally damaging New York communities; 3. the legislature will strip the municipalities of the power to ban fracking through land use and zoning ordinances via an amendment to state legislative preemptions on regulating oil and gas extraction, as has happened in Pennsylvania recently with HB 1950 (now Act 13), and is being attempted in Ohio, Idaho, and Colorado.
Then what will New York municipalities do?
Creating the communities we want to live in won’t wait for better state-wide legislation. There are no legislators wearing white hats ready to rescue us. It’s up to us to take on the serious commitment to municipal law-making based on community rights: the right to protect our health, safety, and welfare; our right to a sustainable and just community; and our right to assert local authority for self-determination in the community where we live. We either live in communities that can protect themselves from fracking by framing the problem as a denial of democracy and community rights, or we continue to lie to ourselves that it is a legal regulatory issue about drilling and how much harm we have to legally accept under existing law.
It is time for all of us to understand that we don’t have a fracking problem—we have a democracy problem: It’s about the denial of local self-governance and the need to elevate the rights of communities over the behavior of corporations.
Wales is the only New York town where a rights-based ordinance was adopted, and a ruling against home rule exclusionary zoning authority will not affect it’s ban of fracking. The communities below are playing by the rules, passing non-rights based ordinances, and are all vulnerable to an adverse ruling by the court and to corporate constitutional attacks. Read the unfolding stories listed below the map.
Interested? Contact us at info@celdf.org
The Cornell Daily Sun: Another Court Upholds Fracking Ban
by Jinjoo Lee, The Cornell Daily Sun
February 27th, 2012
A New York State Supreme Court upheld the Town of Middlefield’s ban on hydraulic fracturing and gas drilling on Friday, mirroring a decision made Tuesday on Dryden’s hydraulic fracturing ban. The decisions are widely expected to set a precent for cities and towns across the state that have banned fracking. Donald Cerio, Jr., Otsego County Acting Supreme Court Justice, ruled that the Town of Middlefield was in compliance with State law when it passed a ban on oil and gas drilling in June, according to court documents.
The Wall Street Journal: 2nd NY court upholds town ban on gas drilling
by The Associated Press, The Wall Street Journal
February 24th, 2012
ALBANY, N.Y. — While only the state can set rules for oil and gas drilling in New York, local governments have the right to ban the industry from operating within their borders, a state court judge ruled Friday in the second opinion of its kind this week....Albany attorney Tom West said Friday that one or both decisions by trial-level judges would be appealed to the state Appellate Division and, if necessary, the Court of Appeals. "We still remain confident that appeals courts will rule that localities can't ban natural gas exploration," West said.
The Village Voice: Hydrofracking Can Be Banned in Dryden, NY
by Victoria Bekiempis, The Village Voice
February 22nd, 2012
A court decided yesterday that the upstate town of Dryden -- located in Tompkins county -- can bar hydrofracking -- marking a major win for fracking opponents. The New York Times reports that Dryden's battle began in August, when the town's board passed a zoning law that bans gas drilling within city limits. The town's decision reflects a nationwide trend, according to the Times: as oil and gas concerns move into populated areas, municipalities are doing whatever they can to keep drillers out. Anschutz Exploration Corporation, which holds the lease on 22,000 acres under Dryden, shot back with a lawsuit, claiming the town doesn't have the authority to regulate drilling.
Gotham Gazette: Will Community Bans on Hydrofracking Hold Up?
by Sarah Crean, Gotham Gazette
December 18th, 2011
Local efforts to restrict hydraulic fracturing have resulted in at least two legal challenges to date and these cases are being watched closely by the natural gas industry, upstate communities and environmental advocates....Middlefield Township, which is located in Otsego County and includes part of Cooperstown, enacted a zoning law in June that bans hydraulic fracturing, along with other types of high impact industrial activity.
WAMC Northeast Public Radio: NY Communities Challenge Gas Drilling
by Dave Lucas, WAMC Northeast Public Radio
December 16th, 2011
ALBANY, NY (WAMC) - The controversial practice of Hydraulic Fracturing has opened a Pandora's Box of legal questions and challenges - the first lawsuit in upstate New York challenging the right of local governments to ban gas drilling (and ultimately, hydrofracking) had its first hearing this week in state court - Hudson Valley Bureau Chief Dave Lucas reports.
WBNG News: Tusten Town Board Bans Hydrofracking
December 4th, 2011
Town of Tusten, NY (WBNG Binghamton) Another town board in our area has voted to ban hydrofracking. In Sullivan County, the Tusten town board voted to prohibit high-impact industry, and that includes high-volume horizontal drilling in the Marcellus Shale....Dryden and Middlefield recently banned hydrofracking, though both are involved in lawsuits.
PressConnect.com: Dryden defends gas ban in State Supreme Court
November 4th, 2011
THACA -- Facing a lawsuit from an out-of-state gas-drilling company, the Town of Dryden defended its reassertion of a prohibition against gas drilling within its borders Friday morning in State Supreme Court in Tompkins County. In front of a full courtroom, the town argued that state law forbidding municipalities from regulating the gas industry does not trump its home rule law or land use authority.
The Cornell Daily Sun: As Ithaca Votes on Fracking, Dryden Defends Its Ban
by Justin Rouillier, The Cornell Daily Sun
November 2nd, 2011
With the City of Ithaca set to vote on a proposed hydraulic fracturing ban Wednesday, the Town of Dryden is preparing to defend its own ban on natural gas drilling before the Tompkins County Supreme Court on Friday.
Times Union: Jennings vetoes city ban on gas drilling
by Jordan Carleo-Evangelist, Times Union
October 27th, 2011
Mayor Jerry Jennings on Thursday vetoed a citywide ban on gas drilling aimed at the controversial practice known as hydrofracking, Jennings' fourth veto in 12 months after 17 years without one. In a two-page veto message, Jennings cited the fact that the state Department of Environmental Conservation is still taking public comment on its proposed regulations for hydrofracking, making any attempt to ban it premature.
The Ithacan: Firm sues Dryden for ban on fracking
by Brian Rank, The Ithacan
October 27th, 2011
The town of Dryden will defend its ban on natural gas drilling in the New York Supreme Court of Tompkins County next week, marking one of the first times a ban will be challenged. The outcome could set a legal precedent for the rest of the state. Anschutz Exploration Corporation is suing the town, which is about 13 miles east of Ithaca, citing the ban as illegal under state law. The company contends that state law supersedes local ordinances on natural gas drilling and towns that do not have the authority to regulate drilling.
Your News Now: Common Council approves hydrofracking ban
by Web Staff, Your News Now
October 24th, 2011
It could be challenged in the courts, but the Syracuse Common Council has imposed a new ban on so-called hydrofracking in the City of Syracuse or on any land it controls. YNN's Bill Carey says the move comes as the industry argues that the drilling could bring good news on economic activity and jobs.
Politics on the Hudson: Syracuse latest city to ban hydrofracking
by Jon Campbell, Politics on the Hudson
October 24th, 2011
The city of Syracuse became the latest municipality to ban a controversial technique used with natural gas drilling, following Albany, Buffalo and a dozen or so towns that have moved to restrict or prohibit hydraulic fracturing within its limits.
October 21st, 2011
Prepared for the Association of the State of New York, an outline of New York State legal cases brought against exclusionary zoning, with overviews of arguments on both sides of the cases.
The New York Times: Rush to Drill for Natural Gas Creates Conflicts With Mortgages
by Ian Urbina, The New York Times
October 20th, 2011
As natural gas drilling has spread across the country, energy industry representatives have sat down at kitchen tables in states like Texas, Pennsylvania and New York to offer homeowners leases that give companies the right to drill on their land....But bankers and real estate executives, especially in New York, are starting to pay closer attention to the fine print and are raising provocative questions, such as: What happens if they lend money for a piece of land that ends up storing the equivalent of an Olympic-size swimming pool filled with toxic wastewater from drilling?
Times-Union: Council OKs ban on gas drilling
by Jordan Carleo-Evangelist, Times Union
October 18th, 2011
City lawmakers brushed aside fears of costly lawsuits from the oil and gas industry Monday night and narrowly approved a ban on gas drilling inside city limits, a move aimed squarely at the controversial drilling technique known as hydrofracking.
The New York Times: Signing Leases for Drilling, and Now Having Regrets
by Mireya Navarro, The New York Times
September 22nd, 2011
Four years ago a man and a woman knocked on Katharine D. Dewart’s door, offering easy money for the use of her land. Handing her a brochure that included serene before-and-after pictures, they explained that a natural gas company was seeking to drill somewhere on her 35 acres of wildflower fields surrounded by hemlock woods in this Tompkins County town near Ithaca. Ms. Dewart, 68, served lemonade and signed, accepting $1,909 upfront and royalty payments of 12.5 percent of any sales of gas extracted from her property. “I assumed it’d be noisy for a couple of months, and I’d have a little extra cash and wouldn’t that be great,” Ms. Dewart, a writer, said.
Reuters: New York fracking lawsuit could set drilling precedent
by Dan Wiessner, Reuters
September 19th, 2011
A lawsuit challenging a small town's ban on natural-gas drilling could have implications throughout New York state, where officials are poised to approve a controversial drilling method known as fracking. Privately held Anschutz Exploration Corp filed suit on Friday against Dryden, a rural suburb of Ithaca with about 13,000 residents that last month amended its zoning laws to bar all gas drilling within its unincorporated borders.
Bloomburg Businessweek: Natural gas firm sues NY town over drilling ban
by Associated Press, Bloomburg Businessweek
September 16th, 2011
A Denver-based natural-gas company has sued the town of Dryden in central New York in an effort to strike down a recent zoning law prohibiting gas drilling there. Thomas West, an Albany attorney for Anschutz Exploration, says the lawsuit was filed Friday in state court in Ithaca.
The Network for Public Health Law - Fracking Products
New York fracking lawsuit could set drilling precedent
Mon, Sep 19 2011
By Dan Wiessner
ALBANY, NY, Sept 19 (Reuters) - A lawsuit challenging a small town's ban on natural-gas drilling could have implications throughout New York state, where officials are poised to approve a controversial drilling method known as fracking.
Privately held Anschutz Exploration Corp filed suit on Friday against Dryden, a rural suburb of Ithaca with about 13,000 residents that last month amended its zoning laws to bar all gas drilling within its unincorporated borders.
New York's Department of Environmental Conservation has recommended ending a year-long ban on drilling in New York, although a public comment period on the rules was extended this month following concerns that fracking contaminates underground wells and aquifers.
The Anschutz suit, which asks the state Supreme Court in Tompkins County to invalidate the amendment, is the first to test the legal implications of the state's move.
Fracking, or hydraulic fracturing, involves cracking open rocks deep underground with a blast of sand, water and chemicals to unleash natural gas and oil.
Anschutz, which controls more than 22,000 acres in Dryden, said New York's Environmental Conservation Law bars local governments from any regulation of drilling.
Officials in Dryden and other towns considering their own restrictions on gas extraction say the law prohibits them only from regulating the drilling itself and not from saying where or whether it can take place.
Kevin Bernstein, an environmental lawyer in Syracuse, said the intent of the law was to create a consistent regulatory scheme throughout the state.
"For there to be a hodgepodge of attempted regulation by municipalities would run counter to that original purpose," Bernstein said.
Dryden's amendment said it was "not directed at the regulatory scheme for the operation of natural gas wells" but addresses land use and nuisance concerns as well as concerns over health and the environment.
The amendment is well within the town's power, said Assemblywoman Barbara Lifton, an Ithaca Democrat who has been an outspoken opponent of the drilling industry.
"If they wanted to say, 'We're going to require you to take the noise level down 50 percent,' or 'This is how you're going to dispose of waste fluid,' then you're regulating the industry, and that is clearly the prerogative of the state," she said.
"But saying we're going to not allow it at all is not regulating the industry itself."
Lawyers defending the industry disagree.
"The law says they can regulate roads and taxes, and that's it," said Tom West, Anschutz's lawyer.
"I'm sure some municipal attorneys will try to come up with other clever means to accomplish the same goal (of banning drilling) but we will argue if it prohibits drilling in any way, it's beyond their authority."
Dryden is not the first New York town to enact a drilling ban. At least a dozen local governments have passed some type of prohibition on gas drilling, but most are not likely drilling sites, so the industry chose not to litigate, West said. (Editing by Ellen Wulfhorst and Cynthia Johnston)
http://www.reuters.com/article/2011/09/19/newyork-fracking-suit-idUSS1E78D29G20110919
Community Environmental Defense Council, Inc
About
Community Environmental Defense Council, Inc. (CEDC) is a non-profit public interest law firm based in Ithaca, New York. We are a 501(c)(3) organization and donations to CEDC are tax deductible. CEDC is dedicated to using the power of law to help communities and citizen groups in New York whose land, air, water, health, and quality of life are threatened by resource extraction activities and associated industrialization.
CEDC achieves this goal by providing free high quality legal advocacy and assistance to communities and citizen groups to help these groups in obtaining the benefit of environmental protection laws. We research legal issues and identify legal strategies for communities that seek to preserve their rural character. CEDC champions the belief that every citizen of New York — young and old, rich and poor, significant landowner or not — as well as future generations have the right to clean air and water, have access to healthy and nourishing food, and to live in vibrant communities with access to flourishing ecosystems. CEDC provides legal education to communities of these public rights and provides advice on some of the options that are available to preserve these rights.
CEDC provides representation in matters where it would not be economically feasible for these communities and citizen groups to retain and pay for representation through a traditional private law firm. CEDC does not accept fees for services from its clients, although it may receive reimbursement for costs such as travel costs, filing fees and expert witnesses. CEDC does not accept any voluntary contributions from entities that earn their income from practices or activities that we oppose or that run counter to our mission. CEDC relies entirely upon donations and grants from foundations and individuals that desire to see their communities and the environment receive top notch legal representation.
Toolbox
So what can be done to protect the integrity of our environment, the place we call home? Community Environmental Defense Council, Inc. is partnering with community groups, planners, task forces, scientists, students and municipalities to strengthen local laws that protect the health, safety and welfare of citizens.
The evidence that methane extraction using slick water horizontal chemical fracturing is damaging and dangerous to our air, water, soil and health grows stronger every day. Today many scientists agree that caution is needed before expanding this practice into more and more communities. By the time the promoters of unconventional methane extraction are convinced that it is unsafe, by the time we are all absolutely certain of the long lasting negative impacts from gas drilling, it will be too late to mitigate the negative effects. There is much that we do not know about the timing and severity of groundwater contamination, endocrine disrupting chemicals and greenhouse gas footprint. However, not have certain answers should not be an excuse for proceeding forward with a gold rush mentality, ignoring the dangers we know exist but that have not yet been quantified. If we are smart, we won’t wait until it is too late. We will take action now.
Most people buy car insurance without knowing with any degree of certainty whether or not they are going to be in a car accident or not. Doctors advise individuals with heart trouble to avoid fatty foods and to exercise despite the fact that there are many complex and unknowable factors that determine whether an individual will actually have a heart attack.
Applying that same logic to gas drilling, the current technology places out far outside the kinds of risk thresholds that we apply in other public arenas, such as aviation safety, building and bridge engineering, or automobile construction. When facing a substantial change of catastrophic consequence and the certainty of lesser negative effects, the only prudent course of action is to limit further expansion of unconventional methane gas drilling until the risks are known and have been mitigated.
We invite you to visit our Toolbox for actions that you and your community can take:
http://www.cedclaw.org/wp-content/uploads/2011/03/Ulysses-020811-Prepared-Remarks.pdf
http://www.cedclaw.org/wp-content/uploads/2011/03/ulysses-ordinance-draft-020711.pdf
Environmental Protection Agency - Regulations
Oil and Natural Gas Air Pollution Standards
Regulatory Actions
You will need Adobe Acrobat Reader to view the Adobe PDF files on this page. See EPA's PDF page for more information about getting and using the free Acrobat Reader.
EPA extends public comment period for oil and natural gas proposed rule
October 24, 2011 - EPA is granting requests for a 30-day extension to the public comment period for the Agency's proposed standards to reduce air pollution from oil and natural gas drilling operations. The public comment period will now close on November 30, 2011. The standards would rely on cost-effective existing technologies to reduce emissions that contribute to smog pollution and can cause cancer, while supporting the administration's priority of continuing to expand safe and responsible domestic oil and gas production. The standards would leverage operators' abilities to capture and sell natural gas that currently escapes into the air, resulting in more efficient operations while reducing harmful emissions that can impact air quality in surrounding areas and nearby states.
In addition, the litigants in the suit have agreed to a 35-day extension of the date for the final rule, which would extend the deadline from February 28, 2012 to April 3, 2012.
Proposed rule extension (PDF) (2pp, 147k) - Federal Register - October 28, 2011
Stipulation extending deadline for issuing final rule (PDF) (3pp, 11k) - filed October 28, 2011
Summary of topics on which EPA is seeking comments (PDF) (8pp, 129k) - Topics on which EPA is specifically seeking comment in the proposed regulations for the oil and gas industry. Comments are due by November 30, 2011.
Public Hearings
August 25, 2011 - EPA will hold three public hearings on the proposed standards to reduce air pollution from the oil and natural gas industry. The hearings will be Sept. 27, 28 and 29 in Pittsburgh, Denver and Arlington, Texas
Hearing Notice (PDF) (2pp, 184k) - Federal Register - August 26, 2011
List of preregistered speakers
Pittsburgh, PA (PDF) (4pp, 213k)
Audio Recording of Hearing Part 1 (mp3) (21.3 MB)
Audio Recording of Hearing Part 2 (mp3) (17.0 MB)
Audio Recording of Hearing Part 3 (mp3) (13.3 MB)
Audio Recording of Hearing Part 4 (mp3) (13.2 MB)
Audio Recording of Hearing Part 5 (mp3) (20.2 MB)
Audio Recording of Hearing Part 6 (mp3) (25.1 MB)
Denver, CO (PDF) (3pp, 166k)
Arlington, TX (PDF) (3pp, 75k)
EPA proposes air rules for the oil and gas industry
July 28, 2011 - The U.S. Environmental Protection Agency proposed a suite of highly cost-effective standards to reduce emissions of smog-forming volatile organic compounds (VOCs) and air toxics from the oil and natural gas industry. The rules also would significantly reduce methane, a potent greenhouse gas.
Proposed rule (PDF) (106pp, 772k) - Federal Register - August 23, 2011
Fact sheet (PDF) (8pp, 419k)
Overview Presentation (PDF) (15pp, 250k)
Regulatory Impact Analysis (PDF) (204pp, 1.6 MB)
Area Navigation
Reports that discuss governmental regulatory jurisdiction
Gas Shale Rush: A Guide on the Legal Issues - Cornell University Law School March 2009
Legal & Practical Guide to Protecting Your Citizens and the Environment - Bosworth Gray & Fuller 03/30/09
Role of Local Government in Relation to Natural Gas Exploration - STERPDB 08/18/08
Preparing for Natural Gas Development: Understanding Impacts & Protecting Public Assets - Sullivan Co. Task Force 02/13/09
Natural Gas Production and Municipal Home Rule in New York - NY Zoning Law and Practice Report Jan/Feb. 2010. Reprinted from the New York Zoning Law and Practice Report, Volume 10, No. 4, with permission of Thomas Reuters.
Natural Gas Exploration and Protecting Local Roads - NYS Assn. of Towns
Text on Flood Plan Management from dSGEIS - Excerpt prepared by OC SWCD