Blair Horner: Fracking Decision Can Be Made By Local Governments

Jul 7, 2014

A top environmental debate over the past six years has been whether New York state should allow a natural gas drilling method known as hydraulic fracturing – or fracking.  During those six years, effectively New York State has had a moratorium on fracking.

Concerns about the public health and environmental impacts from fracking have been the reasons for inaction.  Fracking, which injects a mix of water and chemicals into the ground at high pressure to break up shale deposits and release natural gas, is very controversial.

But some localities, which thought that the state may ultimately approve fracking, have taken matters into their own hands.  The towns of Dryden and Middlefield – among others – passed local zoning laws prohibiting oil and gas mining activities – including fracking – within their respective town’s borders.

One gas company sued to overturn Dryden’s local ordinance.  Last week, New York State’s highest court, the Court of Appeals, ruled that the towns of Dryden and Middlefield can use local zoning laws to ban heavy industry, including oil and gas operations, within municipal borders.

The decision bolstered the actions by more than 170 New York municipalities that have passed similar measures.  It is also likely that the top court’s ruling will encourage other New York towns that have been waiting for the decision to consider their own local bans.

Of course, the opposite is true as well.  Localities could pass laws that promote fracking within their municipal borders – assuming that the state ever gives the green light to the practice.

Under that scenario, the court’s decision could lead to a patchwork of localities banning or allowing fracking in their communities.  Whether such a system would encourage the oil and gas industry to proceed with fracking is anyone’s guess.  But if the state allows the practice, decisions made by local officials could have an enormous impact.

The fracking industry is extremely profitable.  Given that local elected officials rely on private donations to get elected, and they could have a financial stake in fracking decisions, what ethics restrictions exist to ensure that local decisions are free from conflicts of interest?

Very few, it turns out.

In New York State, three laws apply to cases like this one: first is the campaign finance law – if a local official expects to spend more than $1,000 on campaigning for office they have to create a political committee subject to state disclosure requirements.  Campaign contributions to candidates or political parties in excess of $100 have to be disclosed.

The second is the state lobbying law.  Under that law, lobbying of localities which have 50,000 or more residents are subject to disclosure and oversight requirements.

Lastly, based on a 1960s state law, municipalities must enact local ethics requirements that are at least consistent with state regulations.  The overwhelming view is that this law is out-of-date and quite weak.

Outside of those three meager requirements, localities are free to do whatever they please.  Thus, what is increasingly the practice of the Cuomo Administration – allowing localities to make important policy decisions – is safeguarded by limited state ethics laws.

Clearly, if the state goes ahead and allows localities to make fracking decisions, it must do so coupled with requirements that ensure those decisions are made on the merits alone, and not as the result of some personal or political deal.

Of course, relying solely on the merits should lead local officials to take a pass on fracking.  To be sure, fracking has proved to be lucrative for the companies involved and, in some cases, to local landowners.

But there are legitimate costs to be considered.  Any industrial-scale mineral extraction will result in environmental costs.  And those environmental costs could be substantial.  Once mining has begun, there is no turning back.  Caution is the prudent approach.

The Cuomo Administration must ensure that local officials are following ethical best practices when this decision – and others, like deciding whether to support a casino in a community – is under consideration.  Far too much is at stake—for the integrity of the environment and local government.

Blair Horner is the Legislative Director of the New York Public Interest Research Group.

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