Drilling and Land Use in New York State

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Fracking is today among the most important issues facing New York and many other states, and raises pivotal precedent-setting land use questions.  ESF Steering Committee members Environmental Advocates of New York and New York League of Conservation Voters have taken lead roles in advocacy regarding hydraulic fracturng.  In this piece Empire State Future addresses specific land use issues posed by a possible drilling boom in New York State.

The Enormous Question

The small Southern Tier Town of Dryden, a few miles from Ithaca, is the site of a bitter conflict, the resolution of which will dramatically affect New York’s landscape. As the economic and environmental pros and cons of hydraulic fracturing–“fracking”–for natural gas are debated vigorously, enormous land use questions are just now beginning to be answered.

Yesterday, February 21, 2012, State Supreme Court Judge Phillip Rumsey made the first ruling in the case that will serve as the test on whether local municipalities can utilize local zoning amendments to preempt state law on gas drilling.  This ruling, which affirms local municipalities’ right to utilize zoning to regulate where the oil and gas industry can drill,  stems from a September lawsuit by the Colorado-based Anschutz Corporation, which sued the Town of Dryden (Tompkins County), claiming that its ban on fracking as a heavy industry, prohibited in the town’s zoning, violates New York State law. While supporters of the town’s actions applaud the ruling, the gas companies, landowners with land under lease, and other interested parties have a lot in this game—namely, gas drilling lease agreements on 36% of the Town’s land.  The ruling may well be appealed in state court.

As 41 municipalities have passed bans on fracking—and more are considering it–the final outcome of this suit, and a similar one involving the Town of Middlefield, east of Cooperstown, is a huge test of the sanctified tradition of home rule land use control in New York.

While smart-growth is often impaired in New York State by what urbanist David Rusk refers to as the “problem of little boxes”–over 1,600 municipalities exist in the state–the power of local self-determination, home rule, has its place, especially when local land and quality of life might otherwise be overrun by irreparable change or damage.  However, home rule’s preemption of regional planning means that one municipality’s fracking—with horizontal drilling and the fact that groundwater contamination knows no political boundaries—could (literally) undermine the prohibition passed by its neighbors. Yet, granting the power to site fracking wells to regions or to the state could undermine local quality of life concerns.  These dilemmas are playing out right now across the state.

Ominous land use and environmental implications

Hydraulic fracturing involves injecting a cocktail of chemicals (some are known carcinogens) and extraordinarily large quantities of water forcefully into shale layers, breaking up those layers and extracting natural gas. The Marcellus Shale formation, which underlies much of New York State, is the Sutter’s Mill for natural gas explorers, and the gold rush is on.  Thousands of wells are already drilled in Pennsylvania, and landowners across New York are being offered tidy sums to lease their land. In the meantime, the New York Department of Environmental Conservation (DEC) has yet to rule on the extent to which fracking will be allowed in the state.

For many, the industrialization of rural communities and water contamination that fracking can bring is the greatest concern. The EPA recently reported that groundwater contamination in Wyoming was caused by fracking.  Similarly, a recent hydrological analysis concludes the impacts of fracking can include “the disturbance and destruction of aquifers.”1

The pending decision has also fracked friendships and partnerships in many rural communities and villages.  In October, The New York Times wrote about how the debate between citizens in Cooperstown and the surrounding rural areas has turned as contentious a conversation as one held between Yankee and Red Sox fans during the baseball playoffs.  Fracking has developed into a defining political statement, and for many landowners, the consequences of the decision are not just a game.

Local governments are also realizing that fracking will heavily strain road and wastewater treatment infrastructure. The DEC estimates that each well will require at least 1,000 truck trips to haul the equipment, water, wastes and chemicals associated with to drilling and fracking the well.  At the same time, the majority of our waste water treatment systems are ill-prepared to treat huge quantities of chemically-laced water whose contents are unknown because gas companies have exploited a loophole in the Clean Water Act to conceal the waste water’s chemical contents. On top of the wear and tear, heavier truck traffic means elevated danger on rural roads, and more air and noise pollution.

Chemung County: Fracking effects without a single well drilled

The Southern Tier’s Chemung County is now the receiving zone for a crush of Pennsylvania gas workers seeking housing, services and entertainment. From this, there is tax revenue from commercial rentals, sales tax, and other revenues, but the revenue will be offset to varying degrees by public infrastructure and service costs borne by the fracking-related growth. Given expensive sprawling land use and development practices in Chemung County, this growth could overall compromise solvency and livability in rural communities.

To its credit, Chemung County has convened a County Executive’s Advisory Commission on Natural Energy Solutions to examine the full range of impacts to be leveled upon local government should New York’s door fly open to fracking.  But the spinoff land use, economic, environmental, and social effects of Pennsylvania’s fracking are upon Chemung County right now, without a single well having been drilled within its borders.

Land use experts weigh in

Land use law experts in New York seem to be consistent in their belief that local land use powers governing the siting of fracking cannot be preempted by the state. John Nolon, the preeminent land use law expert in New York, cites regulation of gravel mining as a precedent: the court ruled that state law did not trump local government’s power to regulate the locations of gravel mines; that the state can regulate operations, but not locations.  Local location choices would be subject to state environmental review—but municipalities electing to allow fracking would hopefully avoid choices that would fail state environmental review.

Empire State Future believes that regional planning is needed to mitigate the effects of fracking: again, water contamination and other economic and social effects know no political boundaries.

The State of New York has already sued a company drilling in Pennsylvania for contaminating streams in pristine Allegany State Park.  The DEC says that it will consult local planning and zoning when reviewing fracking proposals but the extent to which it would do this is anyone’s guess.  The Legislature in Albany has reintroduced legislation in 2012, A3245/S3472 to try to settle the debate by reaffirming that local governments have the right to enact or enforce certain laws relating to land use and zoning.

Fracking remains a decisive, possibly divisive issue for New York.

 

1 Environmental Science and Technology, 2010, 44, 5679–5684

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