The Department of Environmental Conservation is moving inexorably toward publicly announcing its preordained conclusion that hydrofracking is “safe” for our state — or at least for that portion of it (outside the New York City and Syracuse watersheds) inhabited by those whose heath, safety and votes are considered expendable by Gov. Andrew Cuomo.
In response, many upstate local governments are using home rule and other constitutionally derived powers to enact land use laws to prohibit high-impact uses such as fracking within their borders. But in some communities, certain people are urging that efforts to enact such laws be stalled.
They cite the recent filing of two lawsuits challenging the authority of localities to enact such laws and say they want to wait for final resolution of those cases, to avoid the risk that their own town will be targeted by fracking proponents. But including appeals, that process will take at least two years, and by then the DEC will have begun issuing drilling permits.
Waiting to pass a moratorium or protective law until after the DEC begins issuing drilling permits deprives the municipality of the single, flimsy protection for local control that the DEC has built into its draft SGEIS — the right to say that a proposal to frack in the town is “inconsistent with local land use laws.”
Moreover, waiting is not the “fiscally prudent” thing to do. Waiting to pass a protective law until after permits issue actually exposes the town’s taxpayers to hundreds of thousands, or even millions, of dollars of potential liability — liability that does not exist or at least is dramatically lessened if a town passes its protective law before the DEC begins issuing permits.
Bringing a successful “regulatory-taking” lawsuit requires the claimant to prove it had a “reasonable investment-backed expectation.” And the calculus involved in proving such a claim changes dramatically depending upon whether the law (the alleged regulatory-taking) being challenged was enacted before or after the DEC issues permits.
The Dryden and Middlefield cases involve a single issue: whether a town has the legal authority to pass a zoning law prohibiting gas drilling. Mainstream, conservative legal opinion is that the state’s highest court will confirm that municipalities have the authority to pass protective laws to ban high-impact land uses such as drilling. In the two “test cases” filed so far, the industry has not sought even a penny of financial damages. This means win or lose, a town’s downside in these cases is legal fees.
Assume $150,000 in legal fees, and do the math. Will allowing frackers in cost your town more in road damage (alone) than the $150,000 it might otherwise have to pay to lawyers to keep the frackers out? Ask your highway superintendent.
David F. Slottje is the executive director and senior attorney at Community Environmental Defense Council Inc., a pro bono, public interest law firm based in Ithaca.
