Our neighbors in Tonawanda, on the Niagara River in western New York State just south of Buffalo, were being poisoned for decades by a company that, unlike the gas/oil industry, does not enjoy exemptions from clean water, clean air, toxic waste laws and other regulations set in place to protect our environment and health.

Joe Martens, commissioner of New York’s Department of Environmental Conservation, defended the record of his agency, which eventually set up high-tech air quality monitors that documented extremely elevated benzene levels, leading to the  enforcement actions. But he said such sophisticated equipment had not been available previously. So state officials had no way of knowing about the benzene, formaldehyde, and other toxic emissions seeping from leaks in equipment and piping at the plant, Martens said. “Hazardous air pollutants are difficult to detect. We didn’t have the equipment to do the type of detection — you know, police work — that EPA was able to do” later.

As often happens during in-depth investigations — an unexpected discovery. Reporters learned that the EPA maintains a “watch list” that includes serious or chronic Clean Air Act violators that have not been subject to timely enforcement. Two versions of the internal list, never previously made public, were obtained through the Freedom of Information Act. (More about the watch list here.)

Congratulations to the investigators, researchers, writers, editors, publishers, and funder of these important pieces. May they awaken people to the dangers we face and help them force change to protect and sustain the places we live, the air we breathe, and the lives we hope to continue leading.

- Maura Stephens, independent writer, associate director of the Park Center for Independent Media, and a cofounder of Coalition to Protect New York

The Time is Now: “4220 Or Fight!”
(Sen. Avella re Ban bill, May 2^nd Ban Rally)

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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 14^th 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.

Text of the speech that received the most enthusiastic response from the rally crowd on January 25, 2010, in Albany, New York:

GAS DRILLING AFFECTS THE ECONOMY

Because the estimated potential gain of $22 billion from gas drilling in NYS over the next 20 years not only pales in comparison with the estimated gains during the same period from outdoor recreation, agriculture, and tourism, but it also threatens the future of these very enterprises … we call for a statewide ban.

Because municipalities, which have been deprived of their traditional powers to control local industrial development only in the case of oil and gas extraction, will face new costs of baseline-testing for water pollutants, of emergency response, of health department monitoring of complaints, of property tax assessment changes, of building and repairing roads, of waste water treatment facilities, and of demands on school systems…

Because the severance taxes on gas production will not be dedicated to the localities suffering from gas extraction, and are usually proposed to remediate corporate harms…

Because the Permitting Program relies on localities to enforce floodplain and wetland protections, which most localities are financially unable to do, and are preempted from so doing by Environmental Conservation Law 23…

Because history tells that the exploitation of energy resources leads to widening gaps between rich and poor, to corruption of public offices, to the transformation of public wealth to private profit…

Because the Federal Housing Administration (FHA) will not insure loans for houses within 300 feet of a leased property, which property itself may be unleased or Compulsory Integrated, thus reducing the value of homes on unleased properties…

Because the extraction industry’s invasion of temporary workers, occupying the affordable housing that’s in short supply, will push our working poor into the streets, increasing the number of homeless here as it has in Bradford and Susquehanna Counties, Pennsylvania… we call for a statewide ban.

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GAS DRILLING AFFECTS THE ENVIRONMENT

Because of our concerns that environmental and health damages lasting long beyond our lifetimes will extend across New York… we call for a statewide ban.

Because the global warming effects of methane in natural gas are many times greater than the global warming effects of carbon dioxide…

Because the subsidies granted to oil and gas drilling promote the use of fossil fuels and undermine the development of conservation, efficiency, and renewable energy sources

Because the DEC allows “centralized impoundments”, pits up to five acres in size, holding up to sixteen million gallons of toxic fluids connected by pipes to well pads as far as four miles away…

Because samples of flowback fluids in PA and WV have shown concentrations of cancer-causing chemicals that weren’t even included in the list of DEC’s fracking chemicals, and that in some instances the concentration of a single one of these carcinogenic chemicals exceeded 0.5% of the fluid – which is the purported total concentration of all chemicals in fracking fluid…

Because studies reveal that exposure to the components of hydrogen sulfide-containing natural gas and its condensate by women working in gas processing in Russia adversely affected their reproductive health…

Because West Virginia’s former mountaintops, Louisiana’s Cancer Alley, the war in the Niger Delta, and the ruination of the Ecuadorian Amazon have more to tell us about this industry than all the neat cartoon drawings of the hydrofracking process…

Because clean water and clear air are more important than gas… we call for a statewide ban.

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GAS DRILLING AFFECTS PEOPLE’S RIGHTS

Because thousands upon thousands of leases were signed by landowners who didn’t understand what they were getting into, but which leases will be nonetheless enforced by the state which failed to alert its landowning citizens to the significance of subsoil leases… we call for a statewide ban.

Because no current lessor signed a lease with an awareness of the possibility of an injection well or a compression station on their property, or even what those words meant…

Because the state legislature changed the spacing rules to allow for 640-acre Marcellus units and Halliburton fracking technology after people had already signed leases…

Because municipalities that urged a withdrawal of the dSGEIS are forbidden by law to enforce their responsibility to protect their residents and citizens…

Because the FRAC Act before the Congress would forbid the underground injection of fracking fluids into aquifers serving public water systems, but not private wells serving the majority of households in rural New York…

Because the impact of gas drilling is so widespread, the doctrines of property rights should give way to the doctrine of participatory democracy… we call for a statewide ban.

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GAS DRILLING AFFECTS THE INTEGRITY OF THE DEC

Because until August 2008, the DEC was claiming the “Marcellus shale fracing operations in New York State use fresh water, sand, nitrogen, and a diluted soapy solution to fracture the shale.. not benzene, toluene or xylene”, and thereby fixed the evidence around the policy and showed itself to be an agent of the gas corporations… we call for a statewide ban.

Because for 5 years the DEC has been clear-cutting forest land, upgrading and widening dirt roads within state land, constructing parking areas, and requiring loggers to make roads that connect one logging job to another

Because the DEC, the state agency that so vigorously promoted hydrofracking before Governor Patterson, that will issues permits, enforce whatever regulations it can’t weaken, and unitize owners into wells will be controlled by the industry, compromised, and marginalized as environmental cops…

Because the ten thousand signatures on anti-drilling petitions are dwarfed by the number of New Yorkers who aren’t participating in this movement because they know that regulatory agencies are always captured by the industries they regulate…

Because leaks, spills, and the uncontrolled release of natural gas wastewater only become public if reported by drillers, and because ten more or fifty more inspectors can’t adequately provide independent monitoring of these problems…

Because the reality in Dimock, Pennsylvania, in Garfield County, Colorado, of Dunkard Creek, and of DISH, Texas gives lie to the bureaucrats that their regulations guarantee the safety of the people …we call for a statewide ban.

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GAS DRILLING CREATES A CORPORATE STATE

Because the leasing coalition members, who represent only 2.5% of the population and 12.5% of the land surface in the Marcellus Shale region, have an undue influence on local officials, and serve as a conduit of gas corporation influence… we call for a statewide ban.

Because the compulsory Integration process, which can include as much as 284 acres per Marcellus 640-acre units, is the theft of private property…

Because permits to “examine, prepare, maintain, operate and protect…an underground gas storage reservoir” are accompanied by powers of eminent domain …

Because we have seen that in Pennsylvania top regulators have gone through a revolving door into cushy corporate jobs…

Because leases ostensibly five or ten years long, will be held open for generations by construction or rates of production determined by the drillers…

Because the state has opened the people’s state forests, the people’s state parks, and the people’s state university land to the gas corporations…

Because pending legislation calls for state revenues to be used to construct gas distribution lines in so-called “underserved areas”, and because the state has already spent millions providing pipelines for this highly profitable industry even before the SGEIS has been finalized

Because the state has shown no interest in plugging the gaps created by the “Cheney exemptions” from overarching federal environmental legislation like the Safe Drinking Water Act, the Clean Air Act, and so forth…

And finally, because regulatory processes create the possibility, if not the assurance, of the division of the state into Exclusion Zones and Sacrifice Zones…
WE CALL FOR A STATEWIDE BAN.

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New York,

S I G N  T H I S  P E T I T I O N

&

T H I S   O N E

Pennsylvania, this one’s for you

P E N N S Y L V A N I A N S
A G A I N S T  G A S  D R I L L I N G

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From the Desk of Senator Tom Libous
April 27, 2010

Dear ———-,

DEC announced last week that permit applications in the Syracuse and New York City watersheds will be excluded from their environmental review process. All applications for horizontal drilling in these watersheds would need to be reviewed on a case by case basis.

You can read DEC’s full announcement by clicking here.

What does that mean to us? With Syracuse and NYC watersheds having extra protection, this could do two things:

1) Help stop some of the New York City opposition to drilling.

2) Free up DEC’s review efforts to focus on permit applications outside of those areas.

We might see safe gas drilling begin sooner than we thought.

But, we still face opposition from New York City Assembly Speaker Sheldon Silver. You can read his statement on www.SafeDrillingNow.com. We have to keep fighting.

Best wishes,

Tom

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Sounds familiar, doesn’t it? : Two maps, two standards, part 2

Then again, maybe he reads our blog…

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MB writes:

I just attempted to call Grannis about this decision to do separate
reviews for NYC and Syracuse. I told the operator what my call was
about and I was transferred to the Division of Mineral Resources. I
asked them to please transfer me back to Grannis’s office. After I was
on hold for several minutes, someone answered my call and when I
explained that I was calling to register my displeasure at the plan to
give unequal treatment to different parts of the state, I was told
that they are not taking calls on this matter except through the
Division of Mineral Resources. She said that I could email my concerns
to Grannis, and then they would be documented. I told her I knew the
decision was not hers and I was not angry with her, but that I was
furious that the commissioner’s office is not taking calls on this
matter. I went ahead and told her that I was opposed to the unequal
treatment–she said she was keeping no record of the call. I told her
that I understood that, but I was telling her my position so that if
she got many, many similar calls, she could go and tell her superiors
that she had gotten a lot of calls in opposition to the unequal
treatment, even if the individual calls were not recorded. I also told
her that I have lived in and paid taxes in NY for over 25 years, and
that I bet if Chesapeake were to call about something they would get
through.

People calling about Walter Hang’s effort to get the dSGEIS withdrawn
have been getting similar treatment.

We live in this state and they are not taking our calls! Are they
deliberately trying to piss us off or what? Do they think this will
make us LESS determined to stop this nightmare? If I sound furious,
that’s because I am.

If you have not already done so, please consider calling and sending
emails to the appropriate officials to express your displeasure at the
DEC’s recent decision to create separate regulations for the NYC and
Syracuse watersheds. Phone numbers and email addresses are:

DEC Commissioner Alexander “Pete” Grannis:
518-402-8545
pgrannis@gw.dec.state.ny.us

EPA Region 2 Administrator Judith Enck:
212-637-5000
enck.judith@epa.gov

Governor David Paterson
518-474-8390
governor@chamber.state.ny.us

When contacting Grannis and Paterson, you may also wish to complain
about the fact that, as of last Friday, Grannis’s office was NOT
accepting phone calls on this issue: they were instead transferring
the calls to our “friends” over in the Division of Mineral Resources.

Last week, high-profile news stories indicated that “DEC won’t allow gas drilling in ‘the watershed.’”  Is that true?

[2]. Englebright bill, A10490

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Today, two maps to ponder.   Tomorrow, why.

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In a current article titled, The Wrong Kind of Green, Johann Hari documents how over the last couple of decades, those big “environmental” organizations we always thought were acting in our interests have gradually become “owned” – that is, primarily influenced – by big corporate polluters.  It’s reached the point where groups like Sierra Club and NRDC are actively, conspicuously partnering with corporations like Chesapeake and people like T Boone Pickens who are destroying the places we call home across the nation and around the world.

Tuesday, March 9: New York City activists set the record straight on NRDC's real position regarding gas drilling. NRDC wants to prevent it in special places where special people would be affected, but seeks for it to be only "better regulated" everywhere else

Many of us have given our hard-earned money to these organizations to save other places only to find now that they’re promoting shale gas extracted from our own home regions as a “bridge fuel.”   The experience of other states across the country proves incontrovertibly that getting this bridge-to-nowhere fuel out of the ground, no matter how well the process is regulated, guarantees the destruction of land, water, air, and human & animal health.   It also converts agricultural and forest land into a blighted industrial zone.

We don’t want the industrialization of New York’s rural areas
to be “better regulated.”

We want the only thing that will keep New York’s central regions
beautiful, healthy places to live, farm,
and raise our children and grandchildren.
We want a statewide ban.

Click on image to go to story and comments at indymedia.org

Click on image for video:

Albany, NY, January 25, 2010 (see previous posts below): While approximately 500 people were inside the Convention Center (under The Egg), a group of demonstrators paused on the New York State Capitol Building’s steps — despite the rain and 40 mph gusts — demanding a “STATEWIDE BAN” on unconventional gas drilling.

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