Open to interpretation
Future of ‘Home Rule’ in New York is being tested right here in Livingston County
The state Department of Environmental Conservation has a deadline this month to issue final regulations on high-volume hydraulic fracturing, fracking, for New York State.
But DEC officials have already acknowledged that they are unlikely to make a Feb. 27 deadline. A key date for release and publication of the massive environmental report was to arrive Wednesday and as this week’s edition of The Livingston County News was being put to bed on Tuesday night there was no word on the report from Albany.
Closer to home, a lawsuit involving the Town of Avon — which issued a moratorium on fracking, a technique that has enabled companies to access large amounts of natural gas deposits from Marcellus Shale deep below several states, including New York — and a gas drilling company, is awaiting a judge from Livingston County Court.
Others are also closely watching the lawsuit which, while spurred by the town’s moratorium, potentially carries more significance to towns across the state.
What attorneys for both sides agree on is that the $50 million lawsuit filed by Lenape Resources of Alexander against the Town of Avon and DEC is not a referendum of fracking. And neither side is disputing whether or not DEC has the power to regulate the industry.
At its simplest, the lawsuit is about “home rule,” or a municipalities’ ability to decide for themselves in regards to “property, affairs or government.”
Simple enough: a town should have the right to decide how its natural resources are used.
But interpreting that law — which is what state Supreme Court Judge Robert Wiggins has been tasked with — may be more complicated.
“Despite the protections that the state constitution purports to grant local governments, localities actually have little immunity from state intervention,” former Town of Brighton Supervisor Sandra L. Frankel said during a Feb. 4 rally outside the Livingston County Courthouse.
Inside, attorney Mike McClaren was defending Avon’s right to decide how land is used in its community. Only after a town decides to allow fracking, he said, should DEC regulatory powers come into play. At the same time, Michael Joy was arguing against the town, saying that the state ultimately decides has the authority to determine if fracking is allowed as it is the state enacts the laws that regulate the gas industry.
The judge’s will likely be cited statewide, perhaps even nationally, as similar court battles loom.
In an ideal state, home-rule should co-exist with the state’s ability to regulate the gas industry.
Joy contends that it’s inefficient for the individual municipalities to enact regulations for drilling in their towns. Companies should not have a different set of rules to follow in Avon, Caledonia or Conesus.
It would seem more efficient for the state to devise a single set of regulations — which already run thousands of pages long — that municipalities could follow should they decide to allow fracking on its lands.
And that’s the crux of this argument: should municipalities decide.
For the typical town board it would be time-consuming and costly to research and devise its own rules for fracking. Even hiring an expert would take time and money away from other important matters in its community.
In the spirit of home-rule, it should be up to the people to decide if they want to invite fracking into their community.
Allowing towns to decide will not mean the end of a gas or oil industry in the state as Joy, the gas company attorney, contended. Two recent survey of New York voters found a nearly even split for allowing fracking in the state. So while some communities would likely enact bans, others may not. That should be there right.
The state can set the rules, but it should be up to individual municipalities to decide if they want to play with them.
— BEN BEAGLE, Editor