History is written by the winners. So,
with that in mind,
here’s my take on how the town ban movement started in New York, in the
word’s of the winners, those relatively few men and women that were
instrumental in making it happen, both as a legal strategy and then as a
realization –
one town at a time.
The history of the
Middlefield and
Dryden lawsuits has already been written
in legal journals, such as Charles Gottlieb’s piece, here. And in the findings of the courts themselves, as
summarized in the appellate court’s ruling in Dryden. What
has not been adequately chronicled is how those town bans – that were
so valiantly defended – came to be enacted in the first place. The
conventional wisdom is that these town bans were a result of one or more
of the following:
A. An amorphous “grass roots” effort of aging hippies seeking relevance in their Golden Years
B. Environmental NGOs, such as the
Environmental Defense Fund
C. A secret cabal of The Park Foundation, Josh Fox, GazProm, and the Saudis
D. The Slottjes
E. None of the above
F. All of the above
Only D. applies – partially.
Almost every town ban came about through the singular initiative of a few local citizens. With
precious little help from anyone outside their communities – with the
notable exception of the Slottjes, plus a handful of circuit riding
municipal attorneys, like
Doug Zamelis, and some hard working
land use planners – like
Ted Fink - upon whose work good ordinances are based.
In most cases, only a handful of people made the effort to initiate
these ban. And for some reason that I have never quite fathomed, they
were, more often than not, women. Courageous women. Hard working women.
Clever women.
So here’s to them.
The Idea
The threat of shale gas industrialization was clearly apparent in New York by 2008 –
as
evidenced by the de facto moratorium put in place by the state, in the
absence of updated environmental guidelines (GEIS) to apply to HVHF
wells. The initial town and county actions – expressions of
concern and bans on drilling on county property, such as Sullivan
Counting banning drilling on county lands on July 25, 2010, were largely
ministerial, and in the case of the resolutions, without legal
substance. But these initial actions helped spawn the town ban movement.
At the time, to be charitable, the efforts of activists was a bit
unfocused – test your water before you get fracked. Petition the DEC to
behave. Pushing ropes. To be uncharitable, there were a lot of headless
chickens running around at the time.
From that chaos emerged the leaders of the town bans.
The
first widely circulated paper online that addressed how a town could
use its land use ordinances (zoning) to prohibit shale gas
industrialization was published by Todd Mathes in March 2009 when he was a municipal attorney at
Whiteman Osterman and Hanna,
an Albany law firm. Simply put, Mathes’s interpretation of the relevant
statute and case law was that a properly enacted land use law, based on
a comprehensive land use ordinance, could be applied to oil and gas
drilling, as an heavy industrial use, because state law did not
specifically pre-empt land use ordinances from addressing such
activities. As Mathes put it succinctly :
A plain-meaning interpretation . . . may support the
argument that New York municipalities may regulate the industry outside
of the scope of the State’s regulatory program.
Meaning towns could limit the activity under their zoning laws, they
just could not regulate the activity itself within the town.
This
is how land use applies to gas wells in most other states – by zoning –
within the town. (See comment on the Town of Virgil below)
In January 2010, Michael Kenneally of the New York Association of Towns (NYAOT) published a paper with Mathes that referred to the issue from a
Home Rule perspective – the right of a town to control land uses within its borders.
The Association of Towns were later to write a key amicus in the Dryden case.
Attorneys
Helen and David Slottje took this a step further and explained why land use laws could be used to prohibit shale gas industrialization completely –
effectively banning it from a town.
Since, as they explained, state law addressed the regulation of how
wells were drilled. But if that activity was banned in a town under a
lawfully enacted zoning law, the activity would not exist in the town.
How the activity was regulated by the state would be moot within the
town. So, arguably, Helen and David Slottje were the first attorneys to
widely popularize the notion that a town could “ban fracking” To that
end,
she presented a Power Point at the first statewide conference on
Home Rule at the Otesaga Hotel in Cooperstown, on April 9th, 2011.
Also presenting at the Otesaga conference was land planner
Nan Stolzenburg, who was already working with several early adopters of town bans, namely
Middlefield and
Springfield, to
update their town land use plans. The key role of the land planner is
often overlooked in these town bans. Absent a good land use plan, a town
land use ordinance coud be indefensible. Ironically, in picking the
Town of Middlefield to challenge,
the gas lobby picked the worst foe imaginable since
Ms. Stolzenburg had just finished its land use plan, and the town’s
legal counsel had recently updated the land use ordinance -
with legal opinions on how zoning could be applied to gas wells.
Michelle Kennedy, a Cooperstown attorney,
gave
her reasoning on how shale gas industrialization was not immune to land
use ordinances – in a paper that was later published by the Fordham Law
Review. And a civil engineer from
Laberge outlined how road use ordinances could be use to address shale gas impacts.
The Otesaga forum also explained how to organize a ban initiative:
Julie Huntsman, who organized the
Town of Otsego, and
Peg Leon, who helped organize the
Town of Middlefield, explained how to petition local residents and mobilize opposition to fracking.
The ubiquitous Cris McConkey was there to film the Otesaga Home Rule Forum, here.
Shortly after the
Otesaga Home Rule Forum, Otsego
County towns adopted bans in quick succession: Town of Otsego, 5/13/11,
Middlefield 5/13/11, Springfield 6/20/11 and Cherry Valley, 7/16/11.
One Woman Takes the Initiative to Enact the First Town Ban
Success may have many parents, and failure may be an orphan, but in
the case of the first town ban ordinance, there was really just one
parent:
Julie Huntsman. Since, absent her initiative and resourcefulness, the
Town of Otsego
would probably not have been the first town to ban. And like its
immediate neighboring towns, such as the Towns of Hartwick, Exeter, and
Richfield Springs –
none of which have adopted bans - it might not have any ban at all – without the initiative of key people.
After the legal papers had been published and the Power
Point presentations had been made, virtually every town in Upstate New
York had access to the same information that the Town of Otsego had. What separates the ban towns – each one of them – was the initiative of a few locals. That is the key to the story. It takes a Julie to have a ban.
What Mrs. Huntsman did was organize. She is a vet by training – not a politician nor a lawyer nor a environmental activists. Nor, for that matter, a
blogger.
She organized presentations in the town, where Lou Allstadt, Ron
Bishop, and Michelle Kennedy spoke. Oh, and some token Texan, whose name
escapes me, spoke at Templeton Hall, Cooperstown, on September 7th,
2010. Then, in Julie’s own words, she got to work building political
support for a ban:
In mid February, 2011 the Town Supervisor announced that
the TB was hosting a special town hall meeting on gas drilling March 4
so that the community could be heard, and it was properly advertised.
She encouraged the few pro’s that she knew to get their people there so
there would be no justified excuses from them. That meeting was the
motivation for the phone survey, because I knew we needed something that
would leave absolutely no doubt in those board members minds that Town
of Otsego did not want this mess. Had to put it together fast. Asked
some of the previous name gatherers to help and recruited new people
too. Called up Simon Thorpe of Ommegang and he committed five or six
staff members to help. Gave everybody the script and they had like 8
days to do it.
So in 8 or 9 days every registered in the town of Otsego voter got
called. A lot were out of town for winter break, lots of wrong
numbers, but 1159 people were actually spoken to. 945 (81.5%)
concerned/opposed (almost every volunteer poller said nearly all their
respondents indicated adamant opposition). Off the top of my head I
don’t recall the “drill baby drill ” number, but it amounted to 4.5%;
14% undecided or refused to give a response. So at that March 4 special
meeting I was able to deliver those results to the town board. In the
mean time petition cards (previously mailed) with comments were still
coming in…that effort ultimately netted another 700 names, for 1400
total.
Got pushback from a lone pro-fracker on the planning board during the
town’s April meeting, saying the pro-drilling side had not been heard.
The Town Super (Meg Kiernan) reminded him of the March meeting and the
fact the town board had not had an “anti-drilling” presentation ever;
that (the opposition) came forth during public comment period, and
independent community groups were free to organize their own meeting,
which the anti-frackers (JH) had done. Ended up inviting him and one
other pro guy to speak to the town’s Natural Gas Advisory Committee when
they met in May. When I got wind of that I told the committee chair,
Atwell, that Kelly (Branigan) and I were on the County NGAC and would
have just returned from the county’s PA trip April 27; we would like to
offer our perspectives then, as well. She agreed.
So Kelly (Branigan) and I spoke to the town’s Natural Gas Advisory
Committee, turned in the results of the surveys and petitions and on May
11, 2011 the amendment passed.
The Town of Otsego’s “ban” was an amendment to their land use law
drafted in large part by a retired state judge, Lang Keith, who later
became a town alderman.
Other Early Banners
Local heroes were at work in
Middlefield (5/13/11) where
Sarah White,
Peg Leon,
Kelly Branigan and others lead the petition drive for a ban. In
Springfield (6/20/11) where
Harry Levine was the man that pulled the plow. Here’s Harry’s characteristically self-effacing account:
The Springfield local law was adopted at the initiative
of our Town Board and its Supervisor, Bill Elsey. He was looking at the
action being taken by Cherry Valley and wanted to adopt a similar ban.
But without zoning, the town took a different approach based upon its
police powers.
Advocates for Springfield sent out a community survey in February 2011 (see attached) and got overwhelming results (also attached). We followed with a letter writing campaign.
(Note: I wrote the Town of Otsego’s petition by simply re-wording Harry’s survey. JLN)
The town board introduced a local law that Michelle Kennedy crafted. The law was officially adopted June 2011.
The town had already adopted a good comprehensive plan (Nan
Stolzenburg) that served as the foundation for the local law. David
Staley deserves a lot of credit for the plan. He was a former chair of
the Springfield Planning Board.
There are some late bloomers on
Karen’s List, here’s
Allegra Schecter’s story:
It
was Michelle Kennedy who inspired me, on a cold night in January 2011. I
heard her speak in Cooperstown, with Adrian and Nicole, about the
“possibility“ of banning fracking in Towns, through Home Rule based on
the Frew Run gravel decision. I was so impressed that I went home and
wrote a petition to ban fracking in my Town of Roseboom. I contacted her
about it, and then went door to door all that Winter, eventually
gathering over 300 signatures. I presented them to the Town Board – who
knew nothing- and wanted to do nothing about it. So I founded ROAR
(Roseboom Owners Awareness Response) Against Fracking and we raised
enough money to finally convince our Town Board to allow Michelle to
help us.
First,
Michelle drew up moratorium for us, which we put on the shelf, to use
“just in case”. She then helped us complete our Comprehensive Plan, that
would support “The Protection of the Rural Environment Local Law of the
Town of Roseboom”, which was finally passed (despite some Town Board
opposition) in December 2012!
After doing 32 shale shows around the state, it has been my experience that this is almost always the it works:
Many are called to the cause, but few do the work. So here’s to those few, those happy few, where the rubber hits the road. Take a bow. Home Rule Honor Roll (a work in progress) :
Helen & David Slottje, Todd Mathes, Mike Kenneally, Mary
Jo Long, Michelle Kennedy, Nan Stolzenburg, John Lyons, Doug Zamelis,
Hilary Lambert, Marie McCrae, Bruce Ferguson, Colleen Blaylock, James
Herman, Judge Lang Keith, Julie Huntsman, Kelly Branigan, Peg Leon,
Sarah White, Harry Levine, Bill Elsey, Meg Kiernan, Anne Marie Garti,
Nicole Dillingham, Adrian Kuzminski, Lou Alstadt, Dr. Ron Bishop, Dr Chris Kohlje, Ellen Pope, Mary
Menapace, Sarah Hess, Martha Robertson, Linda Lavine, Sheila Cohen,
Mayor Ryan, Allegra Schecter, Isaac Silberman Gorn, William Huston,
James Dean, Anne Keith, Barbara Pope, Ian Urbina, Deborah Rogers,
Jannette Barth, Krys Cail, Michael Dineen, Mike Bosetti, Barb Monroe,
Cris McConkey, Bonnie Reynolds, Toshia Hance, the Mum Farm, MumuMuesli,
Larry Bennett, Simon Thorpe, The Josh, The Sandra, Dr Anthony Ingraffea,
Dr. Robert Howarth, Deborah Goldberg, Kate Sinding, Roger Downs, Teresa
Winchester, Mary Beilby, Stuart Anderson, Albert Crudo, Irving Hall,
Richard Lacey, The Yoko, Dominic Calsolaro, Sue Rapp, Peter Hudiburg,
Kim Felter, Phillip Simpson, Sandy Podulka, Stan Scobie,Carol Marner,
Karen Edelstein, Jack Ossont, Joe Hoff, Michelle Bamberger, Dominic
Frongillo, Irene Weiser, Annette Gurdo, Texas Sharon, Mayor Tillman,
Theo Colburn, Larysa Dyrszka, Julia Walsh, John Armstrong, Chip
Northrup, Dory Hippauf, Jill Weiner, C.A. Lawrence, Maura Stephens, Vera
Scoggins, Matt Damon, Mark Ruffalo, Kathy Shimberg, Clarke Rhoades,
Maureen Dill, Jim Kevlin, Senator James Seward, Thomas Jefferson,
Stephen Colbert, the list goes on and on . . .
And the only “aging hippie” on it that is a covert agent for GazProm the Saudis is
me.
Get your town on the list. What the frack are you waiting for ?
