Who has the power to regulate land use in a town: the local government? The state? Or multinational energy corporations?
Given two lawsuits filed over the past ten days, it looks like New York will be ground zero for testing whether state regulation of gas drilling trumps local control of land use through zoning. Over the past year more than 15 municipalities and counties across NY have strengthened zoning ordinances or passed legislation to exclude gas drilling and other heavy industries from within their borders.
The gas companies don’t like it, and neither do some large landowners hoping to cash in on what they see as a lucrative gas rush. The real kicker: DEC has not finalized the environmental impact statement – the infamous SGEIS – that sets the basis for establishing rules and regulations for high-volume horizontal hydrofracking. And, once that’s finalized they still have to adopt drilling regulations.
Still, Denver-based Anschutz Exploration Corporation is concerned about its investment in the tiny town of Dryden, located in the Finger Lakes region. According to some press reports, the company has leased well over 20,000 acres. Now they’re concerned that the town’s revised zoning rules will stop them from drilling, and they want the state to strike down Dryden's “drilling ban”.
You see, last month the Dryden Town Board unanimously approved a change to its zoning laws – a change that expressly prohibits any gas exploration, extraction or storage in the town. Town supervisor Mary Ann Sumner told the press that the town had researched the legality of such a zoning ordinance. “DEC cannot preempt our ability to regulate land use,” she said. Dryden, like any other town in NY has the right to decide whether and how to allow industries to operate within the town. “Heavy industry,” she said, “is in conflict with our major industries.”
Anschutz begs to differ, and DEC has tossed this hot potato to the courts noting that the law is "open to interpretation".
But Assemblywoman Barbara Lifton, who represents the region, is not so waffly when it comes to local land use issues. She comes down firmly on the side of “home rule”. Changing local zoning does not regulate the gas industry, she insists. Deciding where industry can locate their facilities (zoning) is very different from telling them what kind of fracking chemicals they can use (regulating).
Meanwhile, over in Otsego county a group of landowners led by a farmer (who has leased her land to a gas company) has engaged a Binghamton law firm to go after the town of Middlefield. In June the town passed a zoning law that, like Dryden’s, excludes drilling through wells or subsurface excavations for oil or gas.
The law firm, Levene Gouldin & Thompson told the press that only the state can regulate oil and gas activities. According to LG&T, state law regulating oil and gas would supersede local zoning ordinances regulating land use.
But David Clinton, Middlefield’s town attorney, sees the issue very differently. “Environmental Conservation Law says that a municipality may not regulate gas drilling,” he says. But the town is not regulating gas drilling. They are prohibiting it.
Who has control over the land? Those of us who live on the land, who grow food on the land, harvest timber, drink the water? Or lawmakers who, by their own admission, are heavily lobbied by corporations interested in extracting wealth for their stockholders?