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Independent Coalition of Citizens Against Fracking
For Immediate Release
September 20, 2011

Grassroots Groups Expose Bias of Cuomo’s Fracking Advisory Panel in Report Released Today

Contact: gasmain.org(@)gmail.com

Report available at GasMain.org

New York State’s recently named Hydraulic Fracturing Advisory Panel is stacked with appointees who have already made clear they’re on the side of the gas industry’s plan to industrialize the state, say grassroots organizations from around New York. The panel was established by Governor Andrew Cuomo’s DEC commissioner Joe Martens in early July – just a week after the governor ended the de facto statewide moratorium on hydraulic fracking.

In a report released today, the grassroots groups show that the panel is dominated not only by industry representatives and industry-paid academics, but also by representatives of national groups that claim to be working to protect the environment but actually are on record as being promoters of so-called “natural” gas.

“The large national organizations’ coziness with polluting industries, Albany and Washington explains their repeated betrayal of grassroots efforts to protect communities and the environment,” said Robert Jereski of New York Climate Action Group, a grassroots environmental organization focused on climate change and ending industrial logging of old growth forests. “These national groups were chosen by Cuomo because he knew he could count on them to support the false notion of ‘safe’ fracking.”

Members of grassroots environmental, civic and community organizations from across the state, who have been educating themselves and others about fracking for several years, are sure the Advisory Panel’s forthcoming report will contain no surprises.

Finger Lakes-based Lisa Wright, a longtime activist on shale issues, pointed out, “New Yorkers and most people throughout the world who have looked closely at unconventional gas development know that fracking for gas is seriously problematic. Organizations that call themselves ‘environmental’ need to stand up for our communities and act like forward-thinking stewards of the earth, not shale-gas salesmen.”

Cecile Lawrence of Tioga Peace and Justice, Green Party NYS 2010 candidate for U.S. Senate and 2011 candidate for Tioga County Legislature commented  “From the moment he began his campaign for Governor of NYS, Andrew Cuomo insisted on being vague regarding his stance on the fracking of the state. Through the makeup of this panel of fracking advisors he has shown that he clearly has allied himself with fossil fuel based monied interests. The lack of presence of anyone from a true grassroots organization grounded in the people of the state whose lives and livelihoods are at stake shows that Cuomo needs an education as to whom he was elected to represent.”

Carl Arnold of Chenango, Delaware, Otsego Gas Drilling Opposition Group (CDOG) also sees pro-“safe” drilling agendas driving some of the larger, supposedly green groups represented on the panel. “Some groups surely know that drilling can never be safe, yet are fudging on a ban,” he said. “This contradiction is made clear when one examines the connections between multinational polluters, large financial and law firms, the oil and gas boys and some well-known NGOs that claim to be protectors of the environment. Those connections raise the obvious questions: What do they receive from the deep pockets of the oil and gas industry? How can they work with those folks?”

The focus of many allied upstate and downstate activists is Part 2 of a just-released report (available at gasmain.org) on the Cuomo advisory panel members who were purportedly appointed to represent the environmental movement.

Coalition to Protect New York is a collective of organizations around the Finger Lakes, central, western, and Southern Tiers regions. “We’ve learned from painful observation and experience,” said one of the coalition’s cofounders, Jack Ossont of Yates County, “that there is no way to ‘regulate safely’ this destructive industrial process. That’s why informed New Yorkers as well as people across the country are demanding that it be banned.”

Adds a fellow CPNY cofounder, Kate Bartholomew of Schuyler County, “Even with our huge and growing movement, the governor’s panel hasn’t got a single member representing our position. To use taxpayer money — our money — to establish this panel and to promote fracking using these discredited ‘environmental’ organizations and industry insiders is not only the opposite of good representative government; it’s downright deceitful.”

In the report released today by the grassroots alliance, familiar groups such as the Natural Resources Defense Council, National Sierra Club, Riverkeeper and many others, including New York State level groups, are examined. Their collusion, as well as the incestuous connections between the industry, Governor Cuomo’s advisers, and vendors hired by his administration and his regulatory body, are a major threat to representational government in our state. In July the Albany Project reported that a vendor paid by DEC to conduct an “independent” economic study of proposed fracking has no expertise in such analysis. The firm is also a paid consultant for big oil and gas clients.

“That’s antidemocratic and unethical,” said Dave Walczak of Bath-based Citizens for Healthy Communities. “Besides, if the governor and Department of Environmental Conservation needed a study on community impacts, to save taxpayers the costs of this so-called ‘independent study,’ all they had to do was drive across the Pennsylvania line below Elmira. What you see there is not what we want in any part of New York.”

A similar federal-level advisory panel examining fracking came under fire recently when 28 top scientists challenged President Obama. His panel, they charged, “appears to be performing advocacy-based science” because its chairman profits from fossil fuel exploitation. Gas industry representatives and academics who are publicly avowed fracking advocates figured prominently on the federal panel.

Clare Donohue of Sane Energy Project expressed the question being asked by thousands of New Yorkers: “Governor Cuomo, we demand an explanation of why you have given the people on the ground, in thousands of communities where fracking is proposed—we whose lives would be forever altered—no seats on your advisory panel?”



Banning Hydrofracking Is Not A “Taking” of Property

By Mary Jo Long, Esq.

 

As the public sentiment grows for a ban on High Volume Hydrofracking (HVHF), lawyers and others who speak for corporate profit-making opportunities in natural gas say that laws banning or limiting gas drilling is a “taking” of property.  Even some who seem to be on our side make the same claim.  This claim is groundless and misguided.  It is a scare tactic to prevent public pressure on our elected officials against HVHF.

 

What is the Legal Status of These Claims?

1.      All property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.   There is no compensation for limiting that type of use of property, and

2.      A “taking” claim does not apply if the property can be used for other purposes even if those uses are not as profitable.

 

Consider the Source

The claim that the government (fed, state or local) will be sued to recover the value of lost property is made by attorneys and others supporting HVHHF as a method of gas drilling.  They say that we, the taxpayers, will have to pay for the lost profits due to the government’s taking of their property.  Always bear in mind that lawyers are advocates for their clients.  When a Landowners’ Coalition lawyer claims that a ban will be a taking, that lawyer is making an argument in support of his client’s position.  Making a claim (I’m going to sue you) doesn’t mean that a lawsuit will really happen nor that a Court will agree with the argument if an actual lawsuit is filed.

 

What Is the Law on Taking Property  by the Government

The Fifth Amendment to the U.S. Constitution provides certain protections to persons.  Included in the protections is the phrase “nor shall private property be taken for public use without just compensation.”[i] This is the “taking” referred to by the anti-ban people.  This obligation to compensate for taking private property only applied to the federal government until the 14th Amendment to the Constitution expanded the application to state governments as well.  Eminent domain is the term most frequently used when a government takes a piece of property: land for a public park, a public road, a public school, etc.  The owner of the land is entitled to be paid for the value of the land taken from her.   Historical evidence suggests that the original intent of the takings clause did not include mere restrictions on use.

But what if the government, say through a town zoning law or a state law, BANS gas drilling without taking over title to the property where gas companies and gas leaseholders expect to drill for gas?  Are governmental laws that restrict the use of the land by restricting a profit making opportunity a “taking” when actual ownership does not change?

The notion that one can do anything he wants on his property is not the law of the land.   The US Supreme Court has said  “all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.” Mugler v. Kansas, 123 U.S. 623, 665 (1887)  This principle still remains the law of the land even as Court rulings on “takings” have muddied the waters.[ii]

A town government can use its police power[iii] and zoning/land use power to restrict and prohibit uses that it considers to be detrimental to the community.  The exercise of these powers does not constitute a “taking.”  For example, the Town of Hempstead passed a law prohibiting gravel pit from excavating below the town’s water table.  This law was upheld in Goldblatt v. Hempstead, 369 U.S. 590 (1962) as a valid use of the town’s police power.  The Supreme Court conceded that the law completely prohibited a prior use by Mr. Goldblatt who had operated a gravel pit for 30 years.  But the Court held that depriving the property of its most profitable use does not make the law unconstitutional, nor a taking.

The present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation.  A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit.  Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes, is prejudicial to the public interests.” Goldblatt at p.593 quoting Mugler v. Kansas.

In 1992 the Supreme Court carved out an exception to this concept in Lucas v. S.C. Coastal Council, 505 U.S. 1003.  The Supreme Court expanded the right to be compensated when new laws deprived land of all economically beneficial use.  Although Lucas still owned the land, a lower court at trial had found that the property was rendered of zero value by the law which prohibited residential construction beyond a baseline on the beachfront.  While the Supreme Court described these as “relatively rare situations”[iv], it has encouraged litigation.  At the same time as Lucas slightly expanded the takings doctrine it also reaffirmed the principle that government does not have to pay compensation when it limits “harmful or noxious uses” of property.

It is correct that many of our prior opinions have suggested that ‘harmful or noxious uses’ of property may be proscribed by government regulation without the requirement of compensation. . . .[G]overnment may, consistent with the Takings Clause, affect property values by regulation without incurring an obligation to compensate – a reality we nowadays acknowledge explicitly with respect to the full scope of the State’s police power”[v]

The Court further acknowledged that Lucas would not be entitled to compensation even though he was deprived of all economically beneficial use if his “bundle of rights” did not include the prohibited use to begin with.[vi] Some uses of land are not a part of the land title to begin with.  When someone owns property the owner does not have the property right to have a common law nuisance.  Government actions that abate common law nuisances are per se not takings.  The Court acknowledged there are inherent limits on landowner rights, imposed under background principles of the State’s law of property and nuisance.  Thus government can still forbid deleterious uses even to the point of total takings.

Justice Scalia, who wrote the majority opinion in Lucas, says that a “total taking” of personal property would be subject to a lower standard “by reason of the State’s traditionally high degree of control over commercial dealings”[vii] This means that there is no claim of a taking based on a gas lease, which is personal property rather than real property, i.e. land.

Those opposing a ban on hydrofracking base their claims of a “taking” on Lucas but subsequent cases have confirmed the narrowness of the ruling in Lucas.

  • Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (Court said moratorium was not a regulatory taking);
  • Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (part of parcel was worth $200,00, so was not a total taking);
  • Lingle v. Chevron U.S.A. 125 S. Ct. 2655 (2005) (recognized that Takings cases were inconsistent.  Tried to clarify by saying the inquiry is whether the regulation is “so onerous that its effect is tantamount to a direct appropriation or ouster” i.e. functionally equivalent to the classic taking in which government directly appropriates private property or outs the owner from his property.);
  • Gazza v. NYSDEC 89 NY 2d 603 (1999),  cert. denied. (Mere diminution in value of property, however serious, is insufficient to demonstrate a taking.)

 

Conclusion

1.      To make a takings argument, the following conditions apply:

a.         A taking claim cannot be based on an interest the owner never had, e.g. the right to create a nuisance.

b.       A taking claim does not apply if the property can be used for other purposes. i.e. the economic value has not been totally extinguished.  Just because the value of the property has been reduced does not mean the owner gets to claim his “expected” profits if he were allowed to fully exploit the property.

c.       Personal property, such as a gas lease, has even less recognition as a taking, even if it is a total taking.

 

2.      Property rights, as well as other rights, are limited by the neighborhood of other public interests.  The highest court in NYS said in Gernatt Asphalt Products v. Town of Sardinia, 87 N.Y.2d 668 (1996):

A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police power to prevent damage to the rights of others and to promote the interests of the community as a whole. (at page 684)

 

3.      The police power of the state is the power to regulate persons and property for the purpose of securing the public health, safety, welfare, comfort, peace and prosperity of the municipality and its inhabitants.

 


[i] “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

 

[ii] In 1922 the Supreme Court ruled that the Pennsylvania legislature had overstepped the line by enacting a law forbidding people from removing coal from under other people’s houses and was held to effect a taking.  The Court said, “While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Penn. Coal Co. v. Mahon, 260 U.S. 393, 415.  In 1987 the Supreme Court in Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 held that a nearly identical law was not a taking.  Property is held under the implied obligation that the owner’s use of it shall not be injurious to the community.  That principle, the court held, does not require compensation whenever the state asserts its power to enforce a prohibition that is injurious to the community.  It is a question that “necessarily requires a weighing of private and public interests.” (pp. 491-492)

 

[iii] Police power is the power to regulated persons and property for the purpose of securing the public health, safety, welfare, comfort, peace and prosperity of the municipality and its inhabitants.  This include prevention, suppression and abatement of public nuisances, including street nuisances and air pollution, preservation of the public peace and tranquility, protection of the public health through sanitation and disposal of waste and from the harmful effects of industrial and commercial development and proper growth of the municipality through zoning.  Article IX of the NY State Constitution; Section 10 of the Municipal Home Rule Law; Section 130 of the Town Law; Section 20 of the General City Law and Section 4-412 of the Village Law.

 

[iv] Lucas v. South Carolina Coastal Council, at p. 1018

 

[v]Lucas at p. 1022-1023 citing  Penn Central Transportation Co. v. New York City,  438 U.S. 104, 125 (1978)

 

[vi] Lucas at p. 1027.

 

[vii] Lucas at 1027.

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There isn’t really so much recoverable shale gas out there.   And there isn’t nearly enough market for what’s currently coming out of the ground.  What’s a dinosaur of an energy player to do?

Here’s what:  First, convince investors that natural gas is the next big thing.  (You can do this with lots of slick commercials on the financial channels.)  Drill lots of wells with their money.  Foreign countries make perfectly good investors – after all, what’re they gonna do when it all collapses – start a war? on US soil?  Second, but simultaneously, convince greedy and gullible lawmakers that there are almost limitless supplies of your commodity and lobby them to pass HR 1835 to give favorable tax treatment (at taxpayer expense, of course) to encourage conversion of the US transportation fleet to natural gas.  This will not only create a desperately-needed market for all that gas in storage that no one knows what do with, but it might finally improve the unit price  (and your stock price, too).    Quick, pull it off while it still looks like there’s more natural gas than anyone knows what to do with!

Once you’ve paid yourself handsomely from investor and taxpayer dollars, get the heck out before everyone else sees the bubble’s about to pop.   The profits from the construction of all those retooled factories and natural gas filling stations will be in your pockets.  Who cares if the factories are at a standstill and the filling stations are obsolete?

P.S. Be sure to invest some of that lucre you duped out of investors and taxpayers into bottled-water companies and municipal water suppliers.  After all that drilling, there’ll be lots of demand for replacement water supplies.

Must-see Powerpoint:

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Arthur Berman:

Shale Gas -

Abundance or Mirage?

Why the Marcellus

Will Disappoint Expectations

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No economic boom, inadequate tax revenues, low royalties, wrecked roads, bad water.

So what else is new?

From NewsInferno.com 9/13/2010:

Fracking in Arkansas Falling Short of Promise

It appears that hydraulic fracturing in Arkansas’ Fayetteville shale isn’t living up to past promises. According to a report in Arkansas Business, depressed natural gas prices have eaten away at royalties and at the state’s severance tax, which was designed to raise revenue to offset the damage the industry causes to roadways.

A gas industry-funded study released in 2008 promised that fracking in Arkansas would have an $18 billion economic impact over five years. The year the study was released, the price of natural gas peaked above $11 per thousand cubic feet (MCF). Since then, Arkansas Business says the national average wellhead price has rarely topped $5 per MCF. That’s significantly cut the amount of royalties gas drillers have paid to mineral rights owners.

When the severance tax was increased in 2008, it was projected to bring in $57 million in its first year. But between the law’s passage in April 2008 and its effective date on Jan. 1, 2009, the price of gas dropped by half. That means that dollars available for road repair have been in short supply, Arkansas Business said.

. . . . .

While the economic boom promised by fracking has yet to materialize, environmental concerns are mounting. According to Arkansas Business, complaints to the Arkansas Department of Environmental Quality (ADEQ) surged in fiscal year that ended on June 30, 2009. That year, ADEQ’s Water Division received 108 complaints related to oil and gas activities and performed 216 inspections. As the 2010 fiscal year drew to a close in June, the number of complaints was about 80.

. . . . .

Some… water contamination incidents that have come out of Arkansas since fracking took off there … include:

• In 2009, a Bee Branch family reported their drinking water turned gray and cloudy and had noxious odors after fracking of a nearby natural gas well owned by Southwestern Energy Company.

• A Center Ridge family reported that in 2007, after hydraulic fracturing of wells owned by Southwestern Energy Company, their water turned red or orange and looked like it had clay in it.

• Another Center Ridge homeowner reported that after hydraulic fracturing of a well owned by Southwestern Energy Company in 2008 his water turned brown, smelled bad, and had sediment in it.

• In 2007, a family in Pangburn reported contamination of drinking water during hydraulic fracturing of a nearby natural gas well owned by Southwestern Energy Company. The water turned muddy and contained particles that were “very light and kind of slick” and resembled pieces of leather.

• In 2008, Charlene Parish, another Bee Branch resident, reported contamination of drinking water during hydraulic fracturing of a nearby natural gas well owned by Southwestern Energy Company. Her water smelled bad, turned yellow, and filled with silt.

See entire piece at http://www.newsinferno.com/archives/23905

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We usually leave events to the events calendar.  The announcement below is worth an exception because of its particular combination of pic and text:  The industry and its lobbyists have been working the halls of state capitols and wining & dining local officials for a long time. The citizens were the last to know.

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Editor,

A May 13 article reporting on a ‘press conference’ that said $11.5 million generated last year from natural gas production in the Town of Smyrna will be handed over to officials presented misleading and factually incorrect information.

Gas production may have generated $11.5 million, but that is revenue for Norse Energy, not Chenango County, the Town of Smyrna, or Sherburne-Earlville [School District].  No amount of money was “handed over” to anyone during the orchestrated gas drilling promotional presentation, nor will any money be turned over to any of the noted entities (Town of Smyrna, Chenango County, or the Sherburne-Earlville School District) at any time in the future.

While Norse Energy will pay roughly the amounts stated in taxes(Smyrna, $83,312; Chenango County, $151,019; and Sherburne-Earlville School District, $264,569) the implication, and likely the perception of many of your readers, is that the Town, County, and School District will receive an unexpected windfall.  These entities (school, town, county) annually develop a budget and determine the tax levy based on their budget.  Only the amount of the levy will be collected from taxpayers, no more, no less.  Based on the stated $11.5 million revenue this year for Norse Energy, they will pay only about 4 percent of that in local taxes.  While this is a benefit to other local taxpayers, it does not increase revenues for the district, the town, or the county.

The expansion in gas drilling, particularly the hydro-fracturing technique proposed for extraction of natural gas from the Marcellus Shale formation (which is really what that show was all about), is not without controversy.  The financial benefits of drilling versus the cost in the environment will be the subject of debate for some time to come.  The handing out of over-sized fake checks may be good theater, but participating in the show implies endorsement of drilling and contributes to the false perception of windfall revenue for schools, towns and counties.  Our Board of Education has made no such endorsement, and I’m sure the issue will be extensively debated in that forum before consensus is reached.

Tom Strain
Assistant Superintendent
Sherburne-Earlville Central Schools



From EnergyJustice.net

> SIGN THE PETITION <

The Kerry, Graham and Lieberman climate bill has become so compromised it’s rotten. Let Congress know that you are deeply concerned about climate change, and therefore support a vote AGAINST this bill. Tell them a much, much stronger climate bill is absolutely necessary!

When the House of Representatives passed the American Clean Energy and Security Act last year, many (including NASA climate scientist Dr. James Hansen) called the bill “worse than nothing,” and found themselves, sadly, opposing climate legislation. Why?? Because the bill failed to rise to the challenge, offered absurdly weak targets, provided ludicrous quantities of corporate handouts to polluters, funded a slew of dirty false solutions (carbon capture and sequestration, biomass burning, nuclear, etc). Overall, it sought to maintain business as usual, rather than putting the nation on the path to avoid catastrophic warming.

Many powerful industry and government interests view climate change not as a serious problem to be resolved by all means possible, but rather as an opportunity to maintain and enhance profits. They would seek to build more polluting incinerators, continue mountaintop removal and coal burning, expand industrial agriculture, drill our coastlines, mine uranium and build more nuclear reactors, leaving us to cope with more cancer, asthma and other health problems, and an altogether questionable future for our children.

When Senators Kerry & Boxer introduced a companion bill largely mirroring “worse than nothing,” it was entirely rejected by some Senators, who, unbelievably, fail to recognize climate change as a problem worth addressing, and are entirely beholden to their fossil fuel and other industry supporters. Kerry went back to the drawing board, this time inviting the participation of industry and the climate change deniers who have made it clear that in order to win the needed 60 votes, they would require fulfillment of their “wishlist.” We are now faced with a bill written to fulfill the wishes of the worst polluters and guaranteed to be FAR worse than nothing.

The Kerry-Graham-Lieberman bill would even take away EPA’s authority to regulate greenhouse gases under the Clean Air Act — our one proven tool for regulating air pollution, which industry fears because it will be more effective than the carbon trading schemes in this legislation. The Kerry-Graham-Lieberman bill would even invalidate any state and local-level laws that are stronger than the weak policies in their bill!

Just because this is a so-called “climate bill” doesn’t mean it is a good bill! Tell your senator and representatives to vote AGAINST this rotten bill because it fails on every count. Demand a much, much stronger climate bill that will embrace targets that meet the mandates of climate science, put an end to dirty energy, restore ecosystems, protect our health and fulfill our obligations to the international community.

For more information, and to sign the petition, visit

http://www.energyjustice.net/climate


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Canadian pipeline companies are considering requests from U.S. producers to reverse the flow of their export lines to bring natural gas from the prolific Marcellus shale into Ontario, displacing some Alberta suppliers who have dominated the Central Canadian market for half a century.”U.S. Gas Producers Eye Ontario Market

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