Month: March 2010

Gas Drilling : Sullivan County’s Hazards Mitigation Plan

Posted on by Liz

In early January 1987,  emergency sirens in Cochecton, Lake Huntington  and Callicoon shattered  the cold  afternoon.*    The children and I stared fearfully at the Plektron© where it sat on its living room shelf  crackling with meager details.  Like any good fire chief’s wife, I didn’t  pick up the phone to call him.  He’d ring us  the minute he had a chance.

Slowly, painfully,  news reached us.  A train had derailed just behind the Callicoon hospital on route 97.  A chemical had spilled and was filling the air with  caustic vapor.

Snow and mud were making access difficult.  All we knew for certain was that several train  cars had jumped the track and were lying on their sides.

For hours,  the nature and toxicity of the chemical remained unknown but  our husbands, brothers and  sons  were having trouble seeing and  breathing.  The Ladies Auxiliaries prepared coffee and sandwiches that remained undelivered.  We were banned from the site.  Our unanswered questions floated in the air around us,  “Where’s Conrail?  What kind of  poison is it?  What’s happening to our men?”

Barely two miles south of the spill,  as our eyes and throats began to tingle,  we learned that young Doc Salzberg had rolled up his sleeves and was helping to evacuate the hospital.  There were too few ambulances for speed or efficiency.

The baby in my belly kicked as my own fear rose.  At some point,  I remembered to feed his brother and sisters and thanked the fates we weren’t amongst the families being forced from their homes.

That was the night  we learned there were serious holes in our  county-wide disaster response.

Within weeks of the incident, local leaders, representatives of ConRail and our Congressional representatives gathered at the Cochecton Firehouse and began to rectify the situation.  It was an admirable and worthy effort on the part of a small county with minimal resources and to this day,  I couldn’t be more grateful for the care our leaders showed.

Fast forward to 2010 and Sullivan County is asking  residents to help update its All-Hazard Mitigation Plan by completing and returning its Hazard Mitigation Questionnaire by March 31, 2010.  According to Sullivan County’s Division of Planning and Environmental Management,  “[The questionnaire] can be mailed, faxed or emailed to Michael Brother at Barton and Loguidice, the consulting firm that is conducting the plan update.  His contact information is listed on the first page of the questionnaire.”

Although the questionnaire does not address  gas drilling or hydraulic fracturing specifically,  comments concerning  the gas extraction industry and its potential for disastrous accidents can be appended at the last page of the questionnaire.

In December 2009,  the Cornell Law School Water Law Clinic submitted its comments on the Draft Supplemental Generic Impact Statement (dSGEIS) issued by New York State’s Department of Environmental Conservation (DEC).  The report stated, “...[DEC’s] current staffing incapacties must be remedied….To demonstrate the critical need for additional field staff, principal tasks specifically identified in the Chapter 7 of the dSGEIS are summarized in the 15-page Memorandum…”

In turn,  the Memorandum states unequivocally,   “…. The scope and extent of these tasks are clearly beyond the capacity of the DEC.” (Cornell comments dsgeis)  (Cornell Law School WLC Memo)

During Mayor Calvin Tillman’s  recent tour of upstate New York and Pennsylvania,   the DISH, Texas official  was asked,  “If a well catches fire in Texas, do local firefighters get called in?”

“No,”  he answered.   “We go to the scene  but  even emergency responders aren’t allowed on a site.  Even if they were,  most  don’t have special training.  If  a relief valve goes off,  our emergency responders  show  up  and  just wait for the guy to turn it off.  We can’t  get access.”

According to  the Environmental Protection Agency’s  (EPA) 2000  report on compliance in the Oil and Gas Extraction Industries, “Oil and gas extraction facilities are inspected much less frequently (46 months between inspections on average) than facilities in most other industries… and the enforcement to inspection ratio (0.05) is among the lowest of the included industries.” (Page 121: Environmental Protection Agency’s  Compliance Assistance Notebooks:  Oil and Gas Extraction Industry)  In a chart on page  120 of the report,  the “enforcement to Inspection Rate” in Region 2  (including New York State)  was  0.17%  while  Region 3’s rate  (including Pennsylvania)  was  .04%.   (More recent data was unavailable at the site.)

So, if  oversight and enforcement of  the gas drilling industry “is beyond  the capacity of the DEC,”  and  the enforcement ratio was already abysmal during Clinton’s “boom times”  in the 1990s,  what disaster mitigation can we expect now in cash-strapped Sullivan County relative to gas drilling and hydraulic fracturing?

Here are a few  clues:

  • if residents see  a possible gas drilling spill or other emergency,  we’re encouraged to call the EPA’s  newly-established TIPLINE  (877-919-4EPA)  or  email the Agency at  eyesondrilling@epa.gov
  • of the 30-plus gas extraction States in  the US,   only  Pennslvania and New York have no severance tax on the industry.  States that have the tax use its revenue for, among other things, community services and infrastructure;
  • under emergency conditions, the FRAC Act (S1215 – 5 sponsors,   HR2766 – 51 sponsors)   would require gas extractors to reveal the  fracturing toxins used at a  particular site.  Unfortunately, it’s nowhere near passage and  consequently,  there is no reason to believe emergency personnel would know the nature of the chemical soup confronting them.

Nonetheless,  as Sullivan County’s Manager, David Fanslau says, “Federal law requires that the municipalities of Sullivan County develop and implement local hazard mitigation plans in order to obtain future FEMA grant monies for hazard mitigation.  These plans must be updated every five years.  Upon final approval from FEMA, Sullivan County and each participating municipality must formally adopt and approve the plan.”

In light of FEMA’s requirements and the potential harm from  drilling activities,  Breathing suggests the following:

  • Encourage  the Sullivan County Legislature  to hold  public meetings where residents can hear  from, and ask questions of, our Commissioners of  Public Health, Public Works, Planning and the County’s emergency responders;
  • Ask your  Town, Village and County representatives if they were present in Narrowsburg on February 19, 2010 when  Mayor Tillman met with local officials to discuss his  and his residents’ experiences with the gas industry in DISH, Texas;
  • Ask your  County Legislator to propose and/or support a Resolution demanding  that New York State maintain a moratorium on gas drilling until  cumulative impact studies have been conducted on the industry and drilling; until Congress completes its investigation of  the industry’s practices;  until residents can be assured of adequate oversight and enforcement of the industry; until  New York State has a severance tax which can be used to train emergency personnel and maintain our infrastructure; and until the FRAC Act has been passed and communities have full-knowledge of the  toxins we’ll confront in an emergency.

Some County Legislators can be be contacted  here and if you’re not sure which District is yours, look on this Legislative District map.

Individual Town websites will have contact information for your Supervisor and Town Board.

*************

**Sullivan County’s Gas Drilling Task Force Report.   Its  Emergency Mitigation portion is excerpted here:

“Along with impacts to local road infrastructure, emergency management  issues are another concern at the local level. Interviews with Emergency
Management counterparts in other parts of New York State indicate that gas  drilling companies have been very good to allow the emergency services (police,
fire and EMS) to attend training sessions which explain how and where a drilling  operation will be set up to include a site visit and hands on question sessions. In
summary, our investigation has shown that most natural gas production wells are located in the Western part of the state and the Emergency Service agencies in
those counties have reported no fire or health hazardous to be associated in there areas for the past twenty plus years.  A few safeguard measures and protocols must be instituted:

  • We must be provided with a list of operational telephone numbers and  email addresses of management contacts and especially emergency contacts that can be called in the event  of an incident near or at a drill  site.
  • Each well site will need a 911 address and access information (gate and lock locations plus access) to ensure that emergency response units can access the site. As will be discussed in the section to follow, the driveway permit process at the town level can be integrated with 911 addressing provided by the Sullivan County Division of Planning. As will be discussed in the next section, the driveway permit forms will need to be revised to require a site plan showing the drilling site and driveway access, as well as photos of the site before construction, after a well is installed and after any subsequent change (e.g., when a well is capped or abandoned) requiring a change in or addition to the NYS DEC permit).
  • Interface with NY Alert to inform Sullivan County residents of a chemical spill or gas fire.
  • Communicate with the public about the importance of registering on-line with NY-Alert to secure receipt of notifications of emergencies.
  • Transportation of waste water/or fracing fluid should be reviewed with emergency response agencies by each operator of a drill site.
  • Emergency management personnel should have access to, or know, the contents of the fracing fluids, to know how to treat injuries and protect the health of emergency personnel and medical staff.
  • For the purposes of health treatment by EMS units and hospital ER’s, the exact contents of the fluid should be on record so that proper treatment is made available.
  • Municipal emergency management staffs need to interact with DEC Region 3 Office and the Mineral Division of the DEC to understand the use of blow out preventers during drilling operations to understand how to control unexpected flows of gas which could result in fires. Along with the DEC, municipal emergency management staff should witness a blow out preventer test prior to drilling.
  • Local emergency management personnel should understand the gas flaring procedure and the layout of flow lines. As for pipeline transport of product through the existing natural gas line or new lines as built, we already have emergency reporting information and training as to how to response to a natural gas line break. This information is updated yearly by the Columbia Gas Transmission Company with their contractor for safety:Paradigm Liaison Services, Wichita, KS.

***************

*Here’s a  NY Times reference to  what we subsequently learned was  an acetaldehyde spill behind the Callicoon Hospital  in 1987:

DERAILMENT IN UPSTATE NEW YORK CALLICOON, N.Y., Jan. 4 (AP) -Twenty-seven cars of a Conrail freight train derailed in a wooded area near the Delaware River this evening, discharging a hazardous chemical from one car and forcing the evacuation of several homes and a small hospital, state police officials said.

****************

Resources you might find helpful as you fill out the County’s  Hazard Mitigation Questionnaire:

Environmental  Protection Agency’s Emergency Planning and  Community-Right-To-Know Act

Environmental Protection Agency’s  Compliance Assistance Notebooks:  Oil and Gas Extraction Industry

Gas Drilling : Inverse Condemnation : Private vs. Public Interests

Posted on by Liz

EDITORIAL

Imagine a Neandrathal  stumbling upon a luscious piece of trail-kill 30,000 years ago  and debating  whether to share it with his hungry tribe or  eat it  himself.

Would survival of the fittest have trumped  his community’s needs?  Or would he have recognized  that food (like water) was  a Neandrathal utility — a resource essential to  the tribe’s survival  —  its consumption regulated with the common weal in mind?   Would Neandrathal society have  concocted some system of head thumps to ensure  that  fortunate ones shared with the hungry many?

Long-enshrined in our societal  understanding of survival  are two fundamental concepts that we treat with varying importance depending on the situation.

  • “A chain is only as strong as its weakest link.”  (Our community prospers when it  fosters and defends  the rights and strengths of  its members.)
  • “Ask not what your country can do for you  — ask what you can do for your country.”   (The strength of our  community  depends on the responsible generosity of its members.)

Some of the wildest and most contentious cases in Supreme Court history have attempted to resolve conflicts between  individual rights and  the community’s expectation that its larger, more inclusive  interests will predominate.

In  the earliest days of our Republic, Eminent Domain was  recognized as a  tool  inherent to the Federal Government’s mandate to “defend and protect.”   For  the  “public good,”  soldiers were billeted in Colonial homes during the Revolution  but  seizure of  private lands for permanent use  was  onerous to most early Americans and the “public use” restriction in the Fifth Amendment’s Takings Clause was strictly interpreted as a  protection against such seizures.

As  our population grew  and technology created a more mobile citizenry,  public works demanded more land for  roads, bridges and railroads.  In more recent years and in response to a landscape crammed full of skyscrapers, derricks, residential and shopping mall sprawl,  eminent domain has been used to protect open space for public enjoyment.   (The “public good” in this instance being protected  from the narrower interests of a few developers.)

Of particular interest to us in the Delaware River Basin is the  legal concept of  “inverse condemnation” which we hear with increasing frequency from  property holders demanding  they be compensated  when  regulations prohibit gas drilling on their properties.  According to a Fifth Amendment Annotation,** “While [the Fifth Amendment]  established that government may take private property, with compensation, to promote the public interest, that interest also may be served by regulation of property use….‘The distinguishing characteristic between eminent domain and the police power is that the former involves the taking of property because of its need for the public use while [police power] involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest.’ 251 But regulation may deprive an owner of most or all beneficial use of his property and may destroy the values of the property for the purposes to which it is suited. 252 The older cases flatly denied the possibility of compensation for this diminution of property values, 253 but the Court in 1922 established as a general principle that ‘if regulation goes too far it will be recognized as a taking.”’ 254

Later, in a 2002 case,  (Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency)  The U.S. Supreme Court found that, “Moratoria on all development in Lake Tahoe Basin area for a period totaling 32 months, imposed by a regional planning agency while formulating a land use plan for the area, were not per se takings of property requiring compensation under the Takings Clause.”

In a seemingly oblique but related development,  corporations attained “personhood”  when The U. S. Supreme Court stated in  Minneapolis & St. Louis Railroad Co. v. Beckwith (1889) “…corporations are persons within the meaning of the [Due Process and Equal Protection clauses of the Fourteenth Amendment]….    We admit also… that corporations can invoke the benefits of provisions of the constitution and laws which guaranty [sic] to persons the enjoyment of property, or afford to them the means for its protection, or prohibit legislation injuriously affecting it.”   (Bold added for emphasis.)

As the trend toward  condemnation of privately held lands has become more usual,  eminent domain actions have increasingly benefited “corporate  persons” in the guise of  public interests.  This trend  occasioned public outrage in 2005,  when The Court ruled in   Kelo v. New London that  privately-held  property could be  seized by a government  and handed over to  a private corporation  for the public benefit —  while said corporation stood to reap a boatload of  profits.

I would never deny just compensation to landholders whose property is seized for the public good but as I write this,  Congress has just launched  an investigation into  gas drilling practices  and their  potential harm to the environment.   Perhaps we should await its findings before deciding that those practices are either legal or in the public interest, as NYS Senator Bonacic has contended.

In that context, NYS  Senator John  Bonacic, the Northern Wayne Property  Owners’ Association (NWPOA) and energy corporations  have  begun a campaign of hostage-taking.  In an  “Alice-Down-The-Rabbit-Hole” logical warp,  they have demanded that millions of people who depend on water from the Delaware River Basin and New York City Watershed pay  landholders NOT to risk  that water supply with a toxic soup of corporate fracking fluids.

“Bizarre-o!”  as my friend Amanda might say.  Or more elegantly,  I refer you to  Cliff Westfall’s analogy of a few days ago, “What if I decided to burn down the woods on my land, claiming it was the cheapest way to clear a field, with no concern for preventing its spread to my neighbor’s house?  Of course the government could regulate that. The bottom line is this: the government may prevent you from doing things on your property when those actions would harm public welfare.”   In further explanation of Mr. Westfall’s comparison,  please understand that  fracturing fluids  used in gas drilling are injected underground,  may travel as much as 6,000 feet and their  direction is neither predictable nor controllable…like a forest fire.

It is inconceivable  that Senator Bonacic and the NWPOA  truly believe that in our current economic crisis any governmental entity (or body of taxpayers) has the means to pay the ransom.  The national unemployment rate is blowing up in our faces.  Tax revenues are plummeting.  Small businesses are dying.  Our infrastructure is crumbling and our children are moving back home and forsaking dreams of college.  In the event NWPOA or some other organization of  lessors prevails in  a lawsuit demanding compensation for the value of their  mineral rights,  every taxpayer, student and worker who does not  benefit from gas royalties will lose.  And the sure winners?  Drilling companies who stand in the background ready to reap the  profits.

Given the latest U.S. Supreme Court decision which found in Citizens United v. Federal Election Commission —  a la George Orwell’s  Animal Farm —  that some “persons”  and their lobbyists  “are more equal than others,” we should not doubt the risk faced by our water and our Republic.

And given the evolutionary demise of Neandrathal,  I can’t help but wonder if  he decided to eat the whole thing all by himself.

Urge the Delaware River Basin Commission and the US Congress  to  enact moratoria  on drilling. It’s for the “public good”  because,  as more and more people are beginning to remember,  “We cannot drink gas  nor grow our food with it.”

************************

*   “…nor shall private property be taken for public use, without just compensation.”

** “In general, compensation must be paid when a restriction on the use of property is so extensive that it is tantamount to confiscation of the property.

In the Mahon case, Justice Holmes for the Court, over Justice Brandeis’ vigorous dissent, held unconstitutional a state statute prohibiting subsurface mining in regions where it presented a danger of subsidence for homeowners. The homeowners had purchased by deeds which reserved to the coal companies ownership of subsurface mining rights and which held the companies harmless for damage caused by subsurface mining operations. The statute thus gave the homeowners more than they had been able to obtain through contracting, and at the same time deprived the coal companies of the entire value of their subsurface estates. The Court observed that ”[f]or practical purposes, the right to coal consists in the right to mine,” and that the statute, by making it ”commercially impracticable to mine certain coal,” had essentially ”the same effect for constitutional purposes as appropriating or destroying it.” 255 The regulation, therefore, in precluding the companies from exercising any mining rights whatever, went ”too far.” 256 However, when presented 65 years later with a very similar restriction on coal mining, the Court upheld it in Keystone Bituminous Coal Ass’n v. DeBenedictis. 257 Unlike its precursor, the Court explained, the newer law ”does not merely involve a balancing of the private economic interests of coal companies against the private interests of the surface owners.” 258 Instead, the state had identified ”important public interests” (e.g., conservation, protection of water supplies, preservation of land values for taxation) and had broadened the law to apply regardless of whether the surface and mineral estates were in separate ownership. A second factor distinguishing Keystone from Mahon, the Court explained, was the absence of proof that the new subsidence law made it ”commercially impracticable” for the coal companies to continue mining. 259 The Court rejected efforts to define separate segments of property for taking purposes–either the coal in place under protected structures, or the ”support estate” recognized under Pennsylvania law. 260 Economic impact is measured by reference to the property as a whole; consideration of the coal placed off limits to mining as merely part of a larger estate and not as a separate estate undermined the commercial impracticability argument.

In a case examining a Moratorium imposed on development in the Lake Tahoe area, the U.S. Supreme Court has decided that a moratorium on development is not necessarily a taking, and that regulatory takings cases must be decided on a case-by-case basis rather than on categorical rules, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (U.S., Apr 23, 2002) (NO. 00-1167).  …the Court held that because the regulation was temporary, it could not constitute a categorical taking.”

Gas Drilling : Inverse Condemnation : Private vs. Public Interests

Posted on by Liz

EDITORIAL

Imagine a Neandrathal  stumbling upon a luscious piece of trail-kill 30,000 years ago  and debating  whether to share it with his hungry tribe or  eat it  himself.

Would survival of the fittest have trumped  his community’s needs?  Or would he have recognized  that food (like water) was  a Neandrathal utility — a resource essential to  the tribe’s survival  —  its consumption regulated with the common weal in mind?   Would Neandrathal society have  concocted some system of head thumps to ensure  that  fortunate ones shared with the hungry many?

Long-enshrined in our societal  understanding of survival  are two fundamental concepts that we treat with varying importance depending on the situation.

  • “A chain is only as strong as its weakest link.”  (Our community prospers when it  fosters and defends  the rights and strengths of  its members.)
  • “Ask not what your country can do for you  — ask what you can do for your country.”   (The strength of our  community  depends on the responsible generosity of its members.)

Some of the wildest and most contentious cases in Supreme Court history have attempted to resolve conflicts between  individual rights and  the community’s expectation that its larger, more inclusive  interests will predominate.

In  the earliest days of our Republic, Eminent Domain was  recognized as a  tool  inherent to the Federal Government’s mandate to “defend and protect.”   For  the  “public good,”  soldiers were billeted in Colonial homes during the Revolution  but  seizure of  private lands for permanent use  was  onerous to most early Americans and the “public use” restriction in the Fifth Amendment’s Takings Clause was strictly interpreted as a  protection against such seizures.

As  our population grew  and technology created a more mobile citizenry,  public works demanded more land for  roads, bridges and railroads.  In more recent years and in response to a landscape crammed full of skyscrapers, derricks, residential and shopping mall sprawl,  eminent domain has been used to protect open space for public enjoyment.   (The “public good” in this instance being protected  from the narrower interests of a few developers.)

Of particular interest to us in the Delaware River Basin is the  legal concept of  “inverse condemnation” which we hear with increasing frequency from  property holders demanding  they be compensated  when  regulations prohibit gas drilling on their properties.  According to a Fifth Amendment Annotation,** “While [the Fifth Amendment]  established that government may take private property, with compensation, to promote the public interest, that interest also may be served by regulation of property use….‘The distinguishing characteristic between eminent domain and the police power is that the former involves the taking of property because of its need for the public use while [police power] involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest.’ 251 But regulation may deprive an owner of most or all beneficial use of his property and may destroy the values of the property for the purposes to which it is suited. 252 The older cases flatly denied the possibility of compensation for this diminution of property values, 253 but the Court in 1922 established as a general principle that ‘if regulation goes too far it will be recognized as a taking.”’ 254

Later, in a 2002 case,  (Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency)  The U.S. Supreme Court found that, “Moratoria on all development in Lake Tahoe Basin area for a period totaling 32 months, imposed by a regional planning agency while formulating a land use plan for the area, were not per se takings of property requiring compensation under the Takings Clause.”

In a seemingly oblique but related development,  corporations attained “personhood”  when The U. S. Supreme Court stated in  Minneapolis & St. Louis Railroad Co. v. Beckwith (1889) “…corporations are persons within the meaning of the [Due Process and Equal Protection clauses of the Fourteenth Amendment]….    We admit also… that corporations can invoke the benefits of provisions of the constitution and laws which guaranty [sic] to persons the enjoyment of property, or afford to them the means for its protection, or prohibit legislation injuriously affecting it.”   (Bold added for emphasis.)

As the trend toward  condemnation of privately held lands has become more usual,  eminent domain actions have increasingly benefited “corporate  persons” in the guise of  public interests.  This trend  occasioned public outrage in 2005,  when The Court ruled in   Kelo v. New London that  privately-held  property could be  seized by a government  and handed over to  a private corporation  for the public benefit —  while said corporation stood to reap a boatload of  profits.

I would never deny just compensation to landholders whose property is seized for the public good but as I write this,  Congress has just launched  an investigation into  gas drilling practices  and their  potential harm to the environment.   Perhaps we should await its findings before deciding that those practices are either legal or in the public interest, as NYS Senator Bonacic has contended.

In that context, NYS  Senator John  Bonacic, the Northern Wayne Property  Owners’ Association (NWPOA) and energy corporations  have  begun a campaign of hostage-taking.  In an  “Alice-Down-The-Rabbit-Hole” logical warp,  they have demanded that millions of people who depend on water from the Delaware River Basin and New York City Watershed pay  landholders NOT to risk  that water supply with a toxic soup of corporate fracking fluids.

“Bizarre-o!”  as my friend Amanda might say.  Or more elegantly,  I refer you to  Cliff Westfall’s analogy of a few days ago, “What if I decided to burn down the woods on my land, claiming it was the cheapest way to clear a field, with no concern for preventing its spread to my neighbor’s house?  Of course the government could regulate that. The bottom line is this: the government may prevent you from doing things on your property when those actions would harm public welfare.”   In further explanation of Mr. Westfall’s comparison,  please understand that  fracturing fluids  used in gas drilling are injected underground,  may travel as much as 6,000 feet and their  direction is neither predictable nor controllable…like a forest fire.

It is inconceivable  that Senator Bonacic and the NWPOA  truly believe that in our current economic crisis any governmental entity (or body of taxpayers) has the means to pay the ransom.  The national unemployment rate is blowing up in our faces.  Tax revenues are plummeting.  Small businesses are dying.  Our infrastructure is crumbling and our children are moving back home and forsaking dreams of college.  In the event NWPOA or some other organization of  lessors prevails in  a lawsuit demanding compensation for the value of their  mineral rights,  every taxpayer, student and worker who does not  benefit from gas royalties will lose.  And the sure winners?  Drilling companies who stand in the background ready to reap the  profits.

Given the latest U.S. Supreme Court decision which found in Citizens United v. Federal Election Commission —  a la George Orwell’s  Animal Farm —  that some “persons”  and their lobbyists  “are more equal than others,” we should not doubt the risk faced by our water and our Republic.

And given the evolutionary demise of Neandrathal,  I can’t help but wonder if  he decided to eat the whole thing all by himself.

Urge the Delaware River Basin Commission and the US Congress  to  enact moratoria  on drilling. It’s for the “public good”  because,  as more and more people are beginning to remember,  “We cannot drink gas  nor grow our food with it.”

************************

*   “…nor shall private property be taken for public use, without just compensation.”

** “In general, compensation must be paid when a restriction on the use of property is so extensive that it is tantamount to confiscation of the property.

In the Mahon case, Justice Holmes for the Court, over Justice Brandeis’ vigorous dissent, held unconstitutional a state statute prohibiting subsurface mining in regions where it presented a danger of subsidence for homeowners. The homeowners had purchased by deeds which reserved to the coal companies ownership of subsurface mining rights and which held the companies harmless for damage caused by subsurface mining operations. The statute thus gave the homeowners more than they had been able to obtain through contracting, and at the same time deprived the coal companies of the entire value of their subsurface estates. The Court observed that ”[f]or practical purposes, the right to coal consists in the right to mine,” and that the statute, by making it ”commercially impracticable to mine certain coal,” had essentially ”the same effect for constitutional purposes as appropriating or destroying it.” 255 The regulation, therefore, in precluding the companies from exercising any mining rights whatever, went ”too far.” 256 However, when presented 65 years later with a very similar restriction on coal mining, the Court upheld it in Keystone Bituminous Coal Ass’n v. DeBenedictis. 257 Unlike its precursor, the Court explained, the newer law ”does not merely involve a balancing of the private economic interests of coal companies against the private interests of the surface owners.” 258 Instead, the state had identified ”important public interests” (e.g., conservation, protection of water supplies, preservation of land values for taxation) and had broadened the law to apply regardless of whether the surface and mineral estates were in separate ownership. A second factor distinguishing Keystone from Mahon, the Court explained, was the absence of proof that the new subsidence law made it ”commercially impracticable” for the coal companies to continue mining. 259 The Court rejected efforts to define separate segments of property for taking purposes–either the coal in place under protected structures, or the ”support estate” recognized under Pennsylvania law. 260 Economic impact is measured by reference to the property as a whole; consideration of the coal placed off limits to mining as merely part of a larger estate and not as a separate estate undermined the commercial impracticability argument.

In a case examining a Moratorium imposed on development in the Lake Tahoe area, the U.S. Supreme Court has decided that a moratorium on development is not necessarily a taking, and that regulatory takings cases must be decided on a case-by-case basis rather than on categorical rules, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (U.S., Apr 23, 2002) (NO. 00-1167).  …the Court held that because the regulation was temporary, it could not constitute a categorical taking.”