Because the DEC is now recognizing Home Rule power, it is urgent that you petition your local community and build support to get your city council or town boards to pass land use (zoning) laws, road use laws, and/or prohibitions of undesirable activities.
- http://www.nytimes.com/2011/12/15/us/towns-fighting-to-stand-ground-against-gas-drillers.html?emc=eta1
- http://www.post-gazette.com/pg/11348/1196672-455-0.stm
- A Legal Plan To Control Drilling
“The DEC has always deferred to local land use ordinances when issuing permits. Such a
deference to local ordinances reflects shale gas regulations in almost all states – including
the home states of all the major shale gas companies. “Home Rule” is the norm when it
comes to drilling permits. And Home Rule should apply to shale gas industrialization in New York, where groundwater is uniquely vulnerable to being polluted by shale gas
Lifton Bill Seeks Safe Drilling
Tompkins Weekly Volume 4, No. 30 - May 3-9, 2010
By Sue Smith-Heavenrich
New York landowners impatient to see bonus and royalty checks are pushing the New York State Department of Environmental Conservation (DEC) to expedite their review of the Supplemental Generic Environmental Impact Statement (SGEIS). DEC officials, busy evaluating the more than 13,000 comments they received on pro- posed rules for high-volume horizontal drilling in the Marcellus shale, say they might not finish the process till later this year, possibly in the fall.
That delay may frustrate some people, but Assembly- woman Barbara Lifton (125th District) is using the extra time to craft legislation that she hopes will protect her constituents, and others, living above what some consider the most coveted natural gas reserve in the country.
Since early 2008, Lifton has spent countless hours on the gas drilling issue. She requested an extension of the comment period for the draft SGEIS, prepared comments on the document, helped conduct two Assembly hearings and recently introduced two bills — all with one goal in mind: to protect local and state water resources.
Lifton believes that individuals, and industries, must be held accountable for their actions. Late last year she introduced The Natural Gas Exploration and Extraction Liability Act of 2010 (A9414). This legislation would impose strict liability for all damages shown to be caused by activities associated with natural gas hydraulic
fracturing (fracking).
“I had heard about problems in other states,” Lifton says. She also learned about spills and problems that had occurred during the past few decades of well drilling in New York. A number of hazards have been associated with the hydrofracking process, Lifton says, noting that the chemicals used may be toxic, cause life-threatening illnesses and can be difficult or impossible to remove once they enter the natural environment.
“It’s possible that fracking chemicals remaining underground may migrate through fractures in the underground formations or cracks in the well-bore casing to pollute groundwater,” Lifton says. She added that the industrialized nature of shale drilling, which includes construction of large well pads, the use of millions of gallons of water and large numbers of trucks to transport water, fracking chemicals, waste fluids and other equipment to and from the well site, may lead to excessive noise, air pollution, deterioration of roads and bridges and contaminated groundwater, including private and pub- lic water supplies.
“If drilling occurs in New York State, those responsible for any adverse impact must be held strictly liable,” Lifton says. Currently, landowners and gas companies are liable for damages, she notes, but it is necessary to prove
negligence. “I want to change that, hold people and the industry to a higher standard,” she says.
If her bill becomes law, someone harmed by drilling practices wouldn’t have to prove negligence. They would only have to prove that drilling caused the damage. This “strict liability” means that people could recover damages for activities that occur as part of normal industrial practice.
“We see this in navigation law where, if there is a petroleum spill, a boater is held liable for the dam- ages,” Lifton says, adding, “both the oil and gas industry and the DEC have repeatedly assured us that natural gas drilling is safe and well-regulated, so I wouldn’t expect the industry to oppose this bill.”
While Lifton is open to amending the bill, she stresses that landowners who intend to profit from drilling should be willing to accept the responsibilities that accompany that activity. She also notes that some new leases include clauses that limit landowner liability. Landowners trapped in old leases won’t have to worry, though. Lifton intends her law to apply to leases signed after the legislation takes effect.
In early April, Lifton introduced a bill (A10633) stipulating that local land use ordinances may dictate where oil, gas, and solution mining is allowed. She had heard from many local governments about their confusion surrounding the state regulatory program for oil and gas development, and how it could affect local zoning law.
“It doesn’t make sense that local zoning gets pushed aside during drilling,” Lifton says. “Especially since the state encourages localities to put time and effort into land use planning.” So she spent a few hours reading up on the issue and consulted an environmental attorney who agreed that it seemed illogical to deny municipalities their land use tools when drilling rigs come to town.
Lifton cites a court case, Frew Run Gravel Products Inc. v. Town of Carroll. In that case the New York Court of Appeals concluded that local zoning ordinances do not “relate to the regulation” of mining and natural gas development, but rather serve to regulate the location, construction and use of buildings and land within the municipality.
“This ruling makes it clear that state regulations do not override local zoning ordinances which may dictate where oil and gas extraction is a permissible use,” Lifton says. Land use planning, she explains, is used by communities to regulate the quality of life. While they may not determine how gas drilling is permitted, municipalities should be able to determine where Marcellus drilling occurs.
Lifton is co-sponsoring other legislation that would regulate Marcellus drilling, including Assemblyman Steve Engelbright’s (4th District) bill (A10490) that establishes a moratorium on hydraulic fracturing until 120 days after the U.S. Environmental Protection Agency issues a report on its nationwide study of the effects of fracking on the environment and public health. She is also co-sponsoring James Brennan’s (44th District) bill (A1322) establishing a moratorium on issuing new drilling permits for two years.
http://www.nytimes.com/2011/07/15/science/earth/15frack.html
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