PLYMOUTH – Towns may use local laws to protect against heavy industrial activities that impact land, such as natural gas drilling, according to a lawyer who made a presentation Monday night to the Plymouth Town Board.
David Slottje, an executive director and senior attorney at Community Environmental Defense Council, said a town’s police powers would extend to land use matters under municipal home rule law, and existing New York mining statute does not take away that local authority.
He also suggested that towns enact moratoriums before the state’s environmental conservation regulators complete their revision of the rules for permitting horizontal shale gas drilling. Doing so first would lessen the financial impact of any potential lawsuits brought by companies and or landowners who challenge local law, he said.
The New York State Department of Environmental Conservation is currently sifting through tens of thousands of comments on a draft Supplemental Generic Environmental Impact Statement. The NYSDEC stopped permitting shale wells in 2008 amidst reports of water contamination in neighboring Pennsylvania and other states in the country where high water volume hydraulic fracturing has been and remains ongoing.
The legal opinion is counter to one offered to those attending a Chenango County Natural Gas Advisory Committee meeting in Norwich last summer. Attempts by government officials to zone the natural gas industry, beyond creating road use ordinances and determining real property taxes, is superseded by New York State Oil, Gas, and Solution Mining Law, said a former director of the DEC’s mineral resources division.
Gregory H. Sovas, president of XRM, LLC, and the primary author of amendments that were made to the state law, was invited to present before the gas committee in the wake of drilling bans passed in neighboring Tompkins and Otsego counties. Lawsuits brought in both the Town of Dryden, by an energy firm, and in Middlefield, by landowners, are currently underway.
About 90 people from all over the region attended the Plymouth Town Board meeting to hear Slottje’s presentation Monday. Supervisor Jerry Kreiner permitted members of the audience to speak for five minutes each during a public comment period. Unlike other town and county board meetings where security was called after members of the public expressed both pro and con arguments on the subject of drilling heatedly and out-of-turn, the tenor at the Plymouth Fire Station was controlled.
Most of the 28 people who addressed the board called on town councilmen to pass a moratorium on high water hydraulic fracturing in Plymouth.
“We hear all of the time that it’s un-American to tell people to do with their property. That’s not true. Ownership of land from the beginning carries a responsibility that it can’t hurt property that will affect neighbors down the street,” said Slottje.
“The general welfare of the public is superior in importance to the financial profits of the people.”
During a power point presentation, the attorney cited legal cases to support his opinion. Plymouth Town Councilman Drew Piaschyk pointed to other legal interpretations of the state’s mineral mining law, specifically to Solvas’ argument.
“This is a local versus a state issue, and the author of mining law said his legislation’s intent was to preempt local law,” Piaschyk said.
Slottje countered that even if Solvas’ intent upon drafting the law was that, such an argument would be considered irrelevant in a court of law.
Several in the audience called upon the town board to look to Gov. Cuomo’s leadership and allow the state’s scientists and the DEC to finish the draft SGEIS. Susan Dorsey, representing 70,000 safe-drilling landowners of the New York Joint Landowners Coalition, said the state’s mineral rights laws trump surface rights and board members and taxpayers could all be held liable.
“We will sue you one after another, after another, after another,” she said.
However, the majority of the speakers cited illnesses caused from drinking water tainted by carcinogens and radioactive toxins after wells were drilled nearby. Others warned that compulsory integration would use peoples’ land against their will and that correcting road damages caused by truck traffic would come out of taxpayers’ pockets.
One speaker said “that nasty stuff under the ground is supposed to stay there. It’s not supposed to be brought back up for everyone to breath and drink.”
Abram Loeb of Afton said the public’s outcry against fracturing was akin to the successful fight landowners raged against the low level radioactive waste dump sites slated for Chenango County in the mid 1990s.
“We have to do what we can on a local level. ... Fracking wells represents 1,000 of ticking time bombs waiting to leak ... dangerous toxins that cause cancers, birth defects and all kinds of illnesses to people who are living by them,” he said.
Dr. Annette Pfannenstiel, of Pharsalia, called for more efforts to use sun and other renewable energy sources to make Chenango County green in the future.
The board took no action following the presentation. Plymouth resident Peter Hudiburg requested that the board entertain the speaker. Hudiburg, who was defeated in a run for council last November, accumulated 600 signatures on a petition asking for a moratorium. He presented the petition over a six month period, according to Councilman Gary Simpson. Simpson said there were no motions before the board to entertain a moratorium.