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Gas Drilling: A Home Rule Issue

It is time to end Albany’s 30-year old gas drilling monopoly and, at the same time, end the state’s home-rule charade. Faced with hydrofracking-related environmental and health risks, local elected officials need the tools to carry out their constitutional responsibilities.

The New York Constitution mandates that local officials provide effective local, self-government and protect the safety, health and well-being of their citizens. What they lack is the explicit legal power to do so.

Several decades ago, the state legislature gave the Department of Environmental Conservation total control over where, when and how gas drillers would operate in towns and villages. Why? Because the drillers wanted a one-stop, DEC-run monopoly that would team up with the industry to promote gas and oil production in New York. The last thing the gas drillers wanted was to deal with local health and safety concerns or zoning ordinances controlling where they could drill.

Today a home rule movement is sweeping the state as many municipalities react to the prospect of a state authorized gas fracking boom. Their reactions are:

The Home-Rule Innovators. Unwilling to trust their health and environmental fate to others, some local officials, champions of America’s self-rule traditions, are busy passing gas drilling bans and moratoriums. Here we find the City of Buffalo, the City of Niagara Falls and the Town of Wales and more than 60 other municipalities in New York including the towns of Dryden and Middlefield where drillers recently lost court challenges to the towns’ drilling ban ordinances. In each case the court concluded that zoning ordinances banning drilling did not violate existing state laws. .

The Wait & See-ers. More timid towns and villages mumble over and over that the innovators do not have the legal right to ban fracking. These officials sit and wait for the legal haze to clear or the frackers to arrive.

Frack Me Now Officials. Not all officials are worried. Where individual property rights trump community-wide health and safety rights elected officials, content with the status-quo, eagerly await the frackers.

A 2008 study prepared by the New York State Commission on Local Government Efficiency and Competitiveness put the problem this way: “Many would argue that true ‘home rule’ exists only if there is some constitutional curb on the power of the State to deal directly in the affairs of a local government. Despite being described as a home rule state, and the protections that the Constitution purports to grant local governments, localities actually have little immunity from state intervention.”

Rather than rely on court cases to say where a town’s powers begin and end, what is urgently needed is a new law passed by the state legislature and signed by the governor that explicitly gives local municipalities the authority to control fracking. In fact, two fracking-related home rule bills are now being debated in the state legislature.

One of these bills, (S5830/A8557), would amend the 1981 environmental conservation law and allow local governments to enact and enforce local zoning ordinances establishing where drilling is, and is not, permissible.

Its passage will give local officials the ability to decide for themselves whether or not to greet the drillers with open arms, or to tell them, “Thanks, but no thanks.”

> Ronald Fraser, PhD, Colden

Fraser is a member of Colden’s environmental planning board.

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