Fracking bans that can stand
In New York State, some 82 towns and counties have passed ordinances outlawing fracking, a natural gas drilling method known for causing severe water pollution. Another 35 have ordinances in the works. But until last week, no one knew quite what would happen when those ordinances were—inevitably—challenged by drilling companies.
Now, in a resounding win for activists, two different state Supreme Court justices have upheld fracking bans in two different New York towns.
Dryden gets active
This is the story of one of those townships, and how it came to be a leader in the fight against fracking. Dryden is home to some 1,850 people amid the rolling hills and glacial valleys of central New York. There, the economy has been sluggish for decades, farmers struggle, and people work hard yet barely make ends meet—making communities ripe for exploitation by an unscrupulous industry.
But the industry didn’t bargain for Hilary Lambert, or Judy Pierpont, or Marie McRae, or any of the tens of thousands of activists, or the dedicated pro bono attorneys who have mobilized to ban fracking in townships across the state before it begins. (New York currently doesn’t allow fracking, pending a review of the practice’s safety by the state Department of Environmental Conservation.)
Dryden residents began mobilizing around fracking in 2009, when a small group began meeting to discuss the issue. Dryden Resource Awareness Coalition (DRAC) evolved; its 10 to 20 most active members would become the core of the town’s efforts, but the organization has no real hierarchy or structure. And that’s the way they like it.
“We set biweekly meetings, reserved space in Town Hall, and people just started showing up,” says Judy Pierpont, a retired professor. “It’s a very loose group. People found their niche and contributed in whatever ways they could. Anyone can participate. We have no officers. We work by consensus. People volunteer for things, and people emerge as leaders.”
That was a new experience for everyone, perhaps no one more so than Joe Wilson, who retired in 2009 from his long-time role as a high school principal.
“All my experience,” says Wilson, “had been in hierarchical organizations with formal planning. We even had plans on how to execute plans. I learned that significant things can be accomplished by people operating as a collaborative with virtually no hierarchy, coming to consensus on both what’s the right thing to do and on how to get it done. I also learned there’s power in such groups. It’s not futile to find grassroots groups that want what you want, band together, and lean on elected officials to move in the direction you favor.”
“We didn’t think we had a right to ban fracking.”
By early 2010, says Jason Leifer, a town board member who has served since 2007, at least some members of the board knew fracking was not something they wanted for Dryden. “I’d been reading blogs by people from other shale plays, in Texas, Wyoming, Colorado, who were writing about the bad things happening in their areas,” he says. “Spills, too many trucks, the trend toward suburban drilling. This was nothing like the old vertical wells.”
But in New York law, towns didn’t have the right to regulate drilling. Leifer and town supervisor Mary Anne Sumner began talking about how the town might deal with fracking if it were to come. “It seemed odd to me that we could have a say in cell towers — which have far less of an impact than a gas well,” says Leifer. “It made no sense. We should have some say in where these things go, if they go anywhere.”
“Initially, like the other communities, we didn’t think we had a right to ban fracking,” says Marie McRae, who owns and operates a small private horse boarding facility in Dryden. She had signed a gas lease in 2008 after being “chased by a landman for nine months,” she says. “He told me that all the other land around was leased, and if I didn’t sign they’d come and take the gas from my land anyway. ‘This lease is your last chance to have a say about what happened to your land,’ he told me. That’s a lie, as I later learned, but I signed. Then I curled up in a fetal position, mentally, for about six months.”
But then McRae, who had never been interested, let alone involved, in politics, woke up — and she has long since made up for any lost time. She joined DRAC, becoming a core member and frequent spokesperson.
The idea that an outright ban might be possible came via neighboring towns, including Ulysses, Danby, Ithaca, and Middlefield, which were pursuing their own bans. All were basing their work on the research of Ithaca attorneys Helen and David Slottje, who found that, while towns are not permitted within New York State law to regulate the natural gas drilling industry, prohibiting the activity of the industry in the first place avoids the problem of interfering in the industry’s conduct of its business.
“These gas companies are waging war on people, on communities,” says Helen Slottje. “You see this kind of bullying all over. In West Virginia, Morgantown passed a ban, and Chesapeake [Energy Company] took away the money they were donating for the school band. The corporations get communities dependent on them, and then they use that dependence to buy silence. And many towns don’t have good legal representation, so they get bullied, beaten up. The gas companies launch smear campaigns and make people’s lives miserable. That makes me angry. That’s what motivates me.”
Through their Ithaca law firm, Community Environmental Defense Council, Inc., the Slottjes have counseled more than 50 municipalities around the state, doing all the work pro bono and relying on donations from individuals and foundations to help support the efforts.
All the towns were trying something totally new, blazing new ground, and with the Slottjes’ counsel, each community was trying to customize what would work for its own unique character and needs.
Convincing the community
After some Ulysses residents came to Dryden and gave pointers about how to petition for a ban, DRAC wrote a simple ban statement and began going door-to-door to collect signatures.
“We started out with about eight of us,” recalls Pierpont, “but then friends, and friends of friends, and friends of friends of friends joined. We also had an online petition, which was very helpful.” The canvassers found that 80 to 85 percent of those they approached were ready to sign the ban petition. But if people’s minds were made up on the other side, some would not even engage in conversation.
The people who believed fracking is “safe, clean, and domestic” shared their views and opinions in language that was straight out of gas company commercials, Wilson notes. They’d heard industry ads and thought of them as news.
“What people see on TV and in major publications is shaped by the gas companies’ ability to get broadcasters and reporters to use a position favorable to energy companies as a point of departure,” Wilson says. “They think they know facts, and therefore they disagree with us. Mainstream media are very powerful in creating frames of reference which we then have to deal with.”
During four months of canvassing, DRAC was also hosting community forums on fracking, where people could hear perspectives not generally available to those getting their news from mainstream media. That helped change some minds, reports Wilson.
“People who seemed to move opinion best were the physicians and scientists, considered bound by their professions to be even-handed, unbiased,” Wilson recalls. “People were also ready to sign if they’d gotten their information from [non-mainstream] sources, such as reading a letter to the editor from someone trusted in the community, or if the veterinarian they’ve been going to for along time says fracking will harm animals.”
And the Slottjes, who patiently explained complicated legal matters over many visits to Dryden, were influential with residents as well as with the Town Board. They recommended that Dryden and other municipalities adopt a zoning law or amendment that specifically prohibits high-impact industrial use, which should be defined as “encompassing unconventional gas drilling and any other use they considered inimical to the municipality’s character and goals.”
The Dryden Town Board held two official public hearings, where the majority of speakers spoke against fracking. On April 20, 2011, at a board meeting packed with more than 100 residents, almost all of whom supported the ban, DRAC announced that it had gotten 1,594 signatures on the petition. Thirty of those signers got up to speak for two minutes each. Longtime resident and former Dryden Planning Board member Buzz Lavine said, as DRAC reported, “The federal and state governments cannot protect us. The power to do that is right here in this room.”
At that meeting an audience member warned that the town might be sued by a big gas company. David Slottje assured the board and the crowd that long legal precedent existed for towns to zone out undesired uses.
Industry fires back
On August 2, 2011 the Town Board voted unanimously for a ban on fracking, fully aware that a lawsuit might ensue.
It did. On September 16, 2011 Anschutz Energy Corporation, which had spent about $4.7 million on leases in Dryden, filed a lawsuit against the town to overturn the ban. They claimed that state law supersedes all local regulations relating to oil and gas activities except as applied to local roads and real property taxes.
But Judge Phillip Rumsey of the New York State Supreme Court ruled on February 21, 2012 that Dryden does indeed have the right to prohibit fracking in the town.
Some people think it’s likely Anschutz will appeal within the 30-day time limit. But, says Mahron Perkins, who has served as Town of Dryden attorney for 33 years and who presented the town’s case, “Judge Rumsey gave a very reasoned, well researched, well articulated decision. I think it’s going to stand up on appeal.”
In the meantime, at Wilson’s urging, DRAC members are also planning to get the town board to put in place secondary protections: road, air quality, critical environmental area designations, rules about setbacks around wellheads. “Our county’s council of governments has a spreadsheet that lists 15 or 16 different municipal tools to enhance the protection of citizenry against fracking,” says Wilson. “We’ll be working on model regulations for the so-called gathering lines, pipes taking the gas from wellheads to compressor stations. No one regulates them now—not the feds, or the state, or municipalities. Perhaps this is something municipalities can claim.”
“Some people say that to say ‘No’ to natural gas makes you a NIMBY,” says Hilary Lambert, steward of the Cayuga Lake Watershed Network, who spent 16 years as a coal activist in Kentucky before moving back to her childhood home in Dryden. “We’re very concerned about this. It’s a crowded world, and it’s getting more crowded. We know we have to take care of everybody’s water, everywhere. We work with everyone across borders, across Appalachia and every other part of the country. Without clean water, we don’t have anything.”
In fact, some of the Dryden activists are already helping other towns build their case for a ban. “We’ve learned so much,” says Pierpoint. “We want to use that knowledge to help other communities.”
She adds, “It feels like affirmation that when you have integrity in a legal system, things can work. We were besieged by somebody with a lot of money and a certain ill will, and we were lucky to get an honest, reasonable judge who looked at this very fairly. We’re fighting to keep our communities safe, but also for the viability of our system of democracy. If we don’t defend it, it goes down.
“In this case, it worked.”
A concurring opinion
Middlefield, New York, a few hours to the east of Dryden, also outlawed fracking last year, with a zoning law banning heavy industry uses of land, including drilling for shale gas. Jennifer Huntington, a dairy farmer who had leased 380 acres of her land for drilling, sued the town, claiming that the ban caused her economic harm.
Three days after the Dryden ruling, another New York Supreme Court judge, Donald Cerio Jr., upheld Middlefield’s ban, finding strong merit in the argument that municipalities have the right to keep harmful activities out.
Attorney Helen Slottje saw it as a clear win, and wrote to her allies congratulating them for the hard work so many people had put into making local laws to protect their communities.
“We have been saying for some time now that towns had the right to zone out drilling activities,” she wrote on hearing the news from Middlefield.
“Industry has, and surely will, continue to engage in bullying, intimidation, and scare tactics against the citizens of the state of New York. But local elected officials across the state have stood strong and stood together, with the unflinching backing of so many of their residents in the face of these strong-arm threats.”
“Because the members of the town boards in Dryden and Middlefield were willing to exercise their right to protect their citizens and stood firm in their convictions, we now have definitive answers from two separate courts that clearly support local community rights.”
Maura Stephens wrote this article for YES! Magazine, a national, nonprofit media organization that fuses powerful ideas with practical actions. Maura is an independent journalist and associate director of the Park Center for Independent Media at Ithaca College and a founding member of the Coalition to Protect New York. She is writing a book, Frack Attack: Fighting Back, about unconventional gas drilling and the grass-roots people who are combating its dangers.
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