Tag Archives: zoning regulations

Bethel, NY’s Hydraulic Fracturing Ban; Public Comments


(Breathing Is Political left the Bethel Town Board’s March 15, 2012 Hearing on Town Law No. 1 of 2012 about twenty minutes before its finish. At that point, thirty members of the public had spoken in favor of the proposed law which would ban high-volume hydraulic fracturing as a high-impact activity in the Town and four members had spoken against the law and in favor of permitting H-VHF activities. According to Larysa Dyrszka, supporters of the legislative ban collected more than 500 petition signatures and at least 100 letters.  

Unfortunately,  the Town of Bethel’s website appears to be “down,”  but  the proposed legislation is scheduled for a vote at one of the April  Town Board meetings which regularly occur on the 2nd and 4th Wednesdays of each month at 7:30 pm.  If interested,  the Town’s phone number is:   845-583-4350.)

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

On March 15, 2012, the Bethel, NY Town Board heard from the public concerning the Town’s proposed Local Law No. 1 of 2012. (For more information, “findings of fact,” and an explanation of the proposed legislation, please see Appendix A and the Town of Bethel’s Land Use Analysis: Hazardous or Natural Gas and/or Petroleum Acivities and Industrial Uses.)

In introductory remarks, Bethel Town Attorney Robert McEwan described the proposed legislative changes as “explicitly prohibiting certain uses Town-wide” and as “amending Zoning Board procedures.”

According to a February 28, 2012 River Reporter article, Mr. McEwan said, “…that the amendment would not only ban gas drilling, but also a number of processes related to gas drilling, as well as high impact uses.” In the same article, Attorney McEwan clarified that, “High-impact uses are the kinds of industries that put out large amounts of pollution….” (BIP Note: The North American Industry Classification System mentioned in the article categorizes industries and assigns them “classification numbers” which can be researched here. The NAICS “is frequently used for various administrative, regulatory, contracting, taxation, and other-non statistical purposes.”

The provisions of Bethel’s Local Law No. 1 of 2012 most-addressed by speakers at the Hearing are these:

  • (6) Land Use Control. This Local Law is intended to act as and is hereby declared to exercise the permissive “incidental control” by the Town of its police power applied to the area of land use planning and the physical use of land and property within the Town, including the physical externalities associated with certain land uses, such as negative impacts on air and water quality, roadways and traffic congestion and other deleterious impacts on a community. This Law is not intended to regulate the operational processes of any business. This Local Law is a law of general applicability and is intended to promote the interests of the community as a whole; and
  • Sections 345-38 which explicitly prohibit injection wells, natural gas and/or petroleum exploration activities; natural gas and/or petroleum extraction activities, natural gas and/or petroleum extraction, exploration or production waste disposal/storage facilities, natural gas processing facilities, underground injection, high-impact uses and other specified activities.

PUBLIC COMMENTS CONCERNING BETHEL TOWN LAW NO. 1 OF 2012:

Although approximately forty people spoke at the the Hearing, Breathing Is Political offers these excerpted remarks as representative of the statements made:

Margarita Gleyzer referred to the fact that some who support H-VHF have called opponents of the process “fear-mongers.” In response, Ms. Gleyzerr  said, “Fear is an innate quality that keeps us from harm. We are not guaranteed jobs from fracking but we are guaranteed damage to our resources. Fracking is not a small town issue; it’s an international concern.”

Jeffrey Allison referred to many claims made by natural gas extraction companies as “myths:”

  • “We’re told there’s 100 years of shale gas in the Marcellus. At best there’s eleven.” (BIP Note: According to the US Geologic Survey, “The Marcellus Shale contains 84 trillion cubic feet of… technically recoverable natural gas and 3.4 billion barrels of…technically recoverable natural gas liquids…” Using US Energy Information Administration data, the U.S. consumed 24.37 trillion cubic feet in 2011. Accordingly, even if all the natural gas in the Marcellus Shale was actually recovered and not shipped to Norway, Japan, etc., we would gain only an additional 3-5 year supply.)


  • “We’re told that H-VHF will bring thousands of jobs but 77% of jobs are filled by out-of-state workers.” (BIP Note: The Center for Economic and Policy Research begs to differ with industry claims of job creation in Pennsylvania drilling areas: “What the data tell us is that fracking has created very few jobs. In fact, employment in five northeast Pennsylvania counties…with high drilling activity declined by 2.7 percent.” (Even accounting for the recession, CEPR calculates a total of “around 1,350 jobs — [which] includes both direct jobs in the gas industry, indirect jobs in the supply chain and induced jobs from spending by workers and landowners.


  • “We’re told that natural gas is cleaner than coal but scientists disagree.” (BIP note: A study issued out of Cornell University reports that gas extraction’s carbon footprint is likely larger than that of coal production.)

Richard Gebel and many other speakers spoke to the natural beauty of Bethel that might be laid waste by high-volume hydraulic fracturing.

Physicians such as Larysa Dyrszka, James Lomax and Hal Teitelbaum spoke to the human health impacts of H-VHF.  One of their shared concerns is that New York State’s draft Supplemental Generic Environmental Impact Statement largely ignores those human health impacts. They talked about the dangers of Naturally-Occurring Radioactive Materials (NORMs) and their impacts on water, soil, our foodshed – our human ecology. (BIP Note: Gas Drilling Tech Notes — with which BIP is affiliated — has an extensive library of scientific articles concerning H-VHF, the waste and radioactive materials produced by the industry’s processes and their impacts on natural and human environments.)

Eric London, a physician and researcher remarked that to begin fracking without a health impacts study would be unethical and he commended the Town Board for its efforts to protect the residents of Bethel.

Jennifer Young, a Bethel farmer, thanked the Town Board for taking a proactive stance. “The National Farmer’s Union has called for a moratorium. I raise free-range eggs and I depend on the quality of our land and water resources. We must support our farmers. We’ve seen an 18 percent decline in farms where gas extraction occurs.” (BIP Note: Apparently, Ms. Young was referring to a 2007-10 study conducted by Dr. Timothy Kelsey at Pennsylvania State University’s College of Agricultural Science. In his conclusions, Dr. Kelsey states, “Changes in dairy cow numbers also seem to be associated with the level of Marcellus shale drilling activity. Counties with 150 or more Marcellus shale wells on average experienced an 18.7 percent decrease in dairy cows, compared to only a 1.2 percent average decrease in counties with no Marcellus wells.”)

Kate Kennedy, a local business owner and resident in the Town of Delaware said, “We need our creamery. We need our slaughterhouse. We are poised to be the New York City foodshed. Fracking will endanger that.”

Laura Berger responded to frequent industry claims that New York State’s regulatory structure and oversight are the “toughest” by citing to The Environmental Working Group’s assertions that New York State is ill-equipped to oversee H-VHF and quoted, “New York has just 14 inspectors to oversee 13,000 existing natural gas and oil wells.”

Ronald Turner said, “This is a big moment for the Catskills. It might be the biggest since our towns were flooded to create the reservoirs. Fracking is not conducive to the qualities that draw people here.” He asked what would happen as the underground infrastructure that’s necessary for H-VHF begins to decay. “Who will monitor that decaying infrastructure,” he asked.

Of the speakers who asked the Bethel Town Board to delay passage of legislation that would ban H-VHF within the Town’s borders, Bill desRosiers of Energy In Depth‘s Marcellus affiliate — the public relations arm of the Independent Petroleum Association of America (IPAA) — was the first to speak and urged the Town Board and Hearing attendees to visit the website, “Frac Focus.” “You can track every well drilled,” he said. “You can find GPS locations and view the chemicals used.” (BIP Note: As Jill Weiner remarked  in her subsequent rebuttal of Mr. desRosiers’ statements, release of chemical-usage information is voluntary, not mandatory.  Further, the Frac Focus site states, “Because the make-up of each fracturing fluid varies to meet the specific needs of each area…” there is still no way of knowing which chemicals were used at a specific site. Additionally, only non-proprietary chemicals are listed at Frac Focus.)

Mr. desRosiers also referred to the March 15, 2012 press release from the Environmental Protection Agency detailing its findings to date on water samples from Dimock, PA. “EPA’s testing in Dimock failed to show elevated levels of contamination,” he claimed. (BIP Note: A reading of the actual press release shows that contamination was discovered, that the testing is incomplete and that “EPA will continue to provide water” to three of the homes which are currently receiving such deliveries. Relatedly, Water Defense has asked several serious questions concerning EPA Region 3’s handling of the Dimock situation which has diverged significantly from investigations conducted by other EPA regional offices. Following EPA’s March 15th announcement, Dimock-resident Scott Ely drew water from his well and collected it in a plastic jug on March 16, 2012.  Thanks to Michael Lebron for this timely photo.)

In conclusion, Mr. desRosiers asked the Town Board to delay its approval of its proposed Town Law 1-2012, “Appeals will be filed in the Dryden and Middlefield cases. I urge you to await the results of the appeals process.” (BIP Note: Mr. desRosiers reference is to two recent New York State Court decisions which upheld the right of local jurisdictions to restrict certain activities within their boundaries.)

Sondra Bauernfeind, the former Chair of the Sullivan County Conservative Party, opined that “Zoning reduces property rights” and reiterated Mr. desRosiers’ request that the Town Board delay approval of the proposed law until “higher courts weigh-in” on the Dryden and Middlefield decisions. Further, Ms. Bauernfeind suggested that laws which prohibit a landowner’s exploitation of his/her property’s resources amount to a taking. “Delaware County wants $81 billion from NYC for property takings.(BIP note: Several courts have dealt with this issue of “takings” (or “Inverse Condemnation” as it’s known in the law) and many legal scholars have concluded that such claims will be struck down in the courts. An introduction to the topic can be found in BIP’s article, “Gas Drilling: Inverse Condemnation: Private vs. Public Interests.”

Harold Russell, a former Bethel Town Board member and opponent of the proposed Town Law pointed to foreclosures in Sullivan County and the dearth of employment for young people in our communities. “Use your heads not your politics!” he finished. (BIP Note: For more on property values, mortgages and natural gas extraction, please see “Rush to Drill for Natural Gas Creates Conflicts With Mortgages.”)

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

In addition to the many Town of Bethel residents who spoke, residents from the Towns of Delaware, Lumberland, Cochecton and Callicoon were also in attendance, due, presumably, to the potential for natural gas exploration, extraction and processing activities being conducted in their Towns.

If you live in a Town where high-volume hydraulic fracturing is being considered, be aware that the process in Bethel has taken, to date, approximately fifteen months.  One resident close to Bethel’s process suggested,  “It makes sense for Towns just looking into zoning protections to consider a moratorium first.  With that in place, they can begin to address potential zoning changes.”

For more information on moratorium efforts, The Community Environmental Defense Council —  David and Helen Slottje —  is the  non-profit public interest law firm based in Ithaca, New York that worked — for free —  with  Bethel and many other Towns in New York. 

The Community Environmental Legal Defense Fund (CELDF), based in Pennslvania,   “is a non-profit, public interest law firm providing free and affordable legal services to communities facing threats to their local environment, local agriculture, the local economy, and quality of life.  Our mission is to build sustainable communities by assisting people to assert their right to local self-government and the rights of nature.”

 

Gas Drilling : Inverse Condemnation : Private vs. Public Interests


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.”