EDITORIAL: ‘Fracking’ case hits home

THE CONTROVERSY OVER “FRACKING” might as well be taking place on the moon for all the impact it’s had here. The term is shorthand for the natural gas drilling and recovery process called high volume hydraulic fracturing. It could mean big bucks–billions of dollars–for the state, for people who own land on top of natural gas deposits and, naturally, for the companies that drill for and sell natural gas.

It could also mean big trouble.

But as the experts say, Columbia County is not “in play” for this latest gold rush. The focus is on natural gas bound up in an ancient rock formation called the Marcellus Shale, which lies beneath most of central and western New York and extends south through Pennsylvania and Ohio to West Virginia. It reaches nearly to the Hudson River but doesn’t extend to our side.

So we don’t get a ticket to play the Mega Millions geological lottery, but this process is already setting precedents that will affect us. That point was made clear by two recent court decisions, one of them won by lawyers from this county.

The case involved the rural Town of Middlefield in Otsego County, which includes part of the Village of Cooperstown, home to the Baseball Hall of Fame. Middlefield recently amended its zoning law to prohibit fracking everywhere in the town. A local dairy farmer sued, asking a state court judge to toss out the ban. The farmer’s complaint said that state law specifically reserves to state government the right to regulate gas drilling throughout the state. So where did the town get off depriving her of the chance to profit from the gas beneath her land?

The lead lawyer for the town, Cheryl Roberts of Austerlitz, working with George Rodenhausen, Victoria Polidoro and Victor Meyers, agreed that both the legislative history of the law governing drilling and the law itself give the state the right to regulate drilling. But they argued that the language of the law and decisions by the state’s highest court uphold one of the bedrock principles of the state constitution: home rule.

In his decision the judge hearing the Middlefield case accepted their position, finding that home rule means the state gets to say how fracking is done, but town zoning determines where drilling is appropriate. That includes the Middlefield Town Board’s decision that it isn’t appropriate anywhere in town.

In effect the judge did deny the farmer access to natural gas that may be under her land. But that gets to the heart of zoning. Think of it this way, the view from above my house in the Village of Chatham is also a natural resource, but village zoning regulations probably won’t allow me to build a 30-story observation tower in my small backyard.

Zoning imposes such limits through the political process, which means that as political power shifts zoning often changes too. What the Middlefield case upholds is the right of communities to make our own decisions about what happens in our backyard. The alternative is to cede that right to the state, which weakens local control.

The state already has plenty to do. The Department of Environmental Conservation is now processing thousands of public comments on how to regulate fracking. Each fracking well requires half million gallons of water–possibly 10 times that much–mixed with a witches’ brew of chemicals, including some known to cause cancer. This mixture, forced deep underground , washes up not only gas but some of the toxic chemicals along with naturally occurring radioactive elements and other nasty stuff better left buried. Then it all has to be trucked away.

What we get for this mess is a bounty of a hydrocarbon fuel that burns cleaner than coal or oil, although critics say that assessment doesn’t take into account the energy used to extract the gas. We also get a domestic source of energy, and maybe it’s fair that we risk fouling our own nest to get the energy we want rather than polluting faraway places like the Persian Gulf or the Nigerian delta.

This case may be overturned on appeal. But that would not be a victory for property owners. The Middlefield decision as it stands affirms the right of local governments to determine their own land use policies. A reversal might advance fracking, but it would also say that lawmakers in Albany are better able than we are to determine how we use our land.

 

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