Should Your Town Have the Right to Ban Fracking? These Laws Will Have to Change First

Unless the legal foundation for local self-governance is truly built on the rights of communities, victories like the one in New York can easily be overturned.
Anti-fracking protesters.

The author is associate director at the Community Environmental Legal Defense Fund.

In June 2014, in a much awaited decision, New York’s Court of Appeals delivered a blow to oil and gas corporations while giving a much needed lift to communities facing fracking.

The court, which is the highest in the state, held that towns in New York can use local zoning laws to ban oil and gas extraction. The ruling has been widely celebrated among environmentalists and communities, and those involved are to be commended. This case proves that our communities are capable of collective mobilization, and that their actions can change the way that judicial institutions interpret and apply the law.

The court’s decision had almost nothing to do with the rights of people or communities to collectively say “no” to oil and gas extraction.

Yet the victory is likely to be a temporary one because the towns’ power over zoning can be taken away by the state or further limited by the “rights” of oil and gas corporations. The fragile nature of the win in New York state demonstrates the need for a legal foundation that’s based in community rights—such that communities have local, democratic, self-governing authority to decide what happens in their own communities—authority that cannot be stripped away by hostile state legislatures or overridden by corporations claiming that their rights trump those of communities.

There is a growing movement for local self-government building across the country, as communities in different states wrestle with the same problem facing those in New York—that is, a structure of law in which state governments, the federal government, and corporations can override local decision-making no matter the environmental or economic impacts.

Increasingly, communities are no longer willing to accept this. In some places, they are beginning to enact local Community Bills of Rights, laws that secure the right to democratic, local self-governance.

What happened in New York

The two towns that were the defendants in these cases—Dryden and Middlefield—are located in the Marcellus Shale region, where a massive underground deposit of shale rock reaches from New York state to West Virginia. Increasingly, gas corporations conduct hydraulic fracturing, or “fracking,” to access the region’s shale gas—or what has been deemed “natural gas.”

Communities throughout the Marcellus and across the country are rising in opposition to fracking, concerned about environmental and other impacts. Each frack well—of which there are thousands across the Marcellus—uses millions of gallons of fresh water, which are combined with sand and chemicals to fracture the underground rock and release the gas.

The process produces millions of gallons of contaminated wastewater, which corporations increasingly dispose of by injecting it into high-pressure underground wells. Both fracking and wastewater injection wells have been linked to earthquakes in Ohio and other states.

In addition, although many claim that shale gas is a cleaner fuel than coal or oil, research has found that the fracking process is a major contributor to global warming.

As fracking spread in New York, the town boards of both Dryden and Middlefield researched the practice and its impacts. Both determined that oil and gas extraction were incompatible with their rural character and would damage the health, safety, and welfare of residents and the natural environment.

The town boards each amended their land use zoning laws to prohibit oil and gas extraction. And both towns were immediately sued.

The gas corporations bringing the lawsuits argued that a state law called the Oil, Gas and Solution Mining Law preempted communities from regulating oil and gas activities. The cases made their way through the lower courts and were ultimately considered together by the state’s high court.

The cases prove that our communities' actions can change the way that judicial institutions interpret and apply the law.

The Court of Appeals ruled for the towns, affirming that they have the authority to use their zoning powers to prohibit oil and gas extraction. In its decision, the court cited the state’s Town Law, which established the authority of towns to pass zoning laws to foster “the health, safety or general welfare” of the community. The court went on to cite the law’s declaration that the regulation of land use is “(a)mong the most significant powers and duties granted … to a town government.”

The court found that the towns were acting lawfully in prohibiting extraction through their zoning ordinances. “Dryden and Middlefield engaged in a reasonable exercise of their zoning authority,” it explained, “when they adopted local laws clarifying that oil and gas extraction and production were not permissible uses in any zoning districts.”

Much celebration has followed, and rightfully so. Elected officials in the towns of Dryden and Middlefield are especially deserving of praise because they stood firm in the face of corporate lawsuits. Also to be celebrated are the efforts of the Community Environmental Defense Council (no relation to my employer, the Community Environmental Legal Defense Fund)—a small public-interest law firm that pioneered the legal strategy of using local zoning laws to protect New York communities from fracking and other extractive processes.

Did the court’s decision rest on the right to self-government?

For all the celebration, we must understand that this victory in New York is not secure. As the court made clear, the state legislature in Albany could pass a new law tomorrow that eliminates the authority of communities to use their zoning powers to prohibit fracking. Thus the court’s decision did not recognize that communities have the “right” to ban fracking.

The power of municipalities to legislate is also limited by the “rights” of private corporations.

Yet there has been a lot of talk about “rights” in the ensuing discussion. For example, the Center for Effective Government wrote that the ruling “upholds local communities’ rights to govern land use and protect citizens from the public health risks associated with fracking.”

Unfortunately, this is not the case. The court’s decision had almost nothing to do with the rights of people or communities to collectively say “no” to oil and gas extraction. Instead, it focused entirely on whether the towns themselves, as municipalities created by the state, had the power to use zoning ordinances to ban the use of land for oil and gas extraction.

A municipality’s power to legislate is different than the people’s right to govern. Power is delegated and can be stripped away. Rights are inalienable and thus are not subject to the political whims of the dominant political party or the majority on a court.

As a wholly owned subsidiary of state government—or, as the court put it, as a “creature” of the state—a municipality’s decision-making and legislative powers can be changed or removed at the whim of the state legislature. If the legislature decided tomorrow to prohibit towns from using zoning ordinances to ban fracking, nothing could stop it from doing so. In the words of the court, “There is no dispute that the State Legislature has the right [to override local oil and gas laws] if it chooses to exercise it.”

Examples of this abound. In Pennsylvania, when municipalities began banning corporate factory farms more than 10 years ago, the state legislature proceeded to empower the state Attorney General to sue them on behalf of agribusiness corporations. In doing so, the state followed the lead of New York’s legislature, which has had a similar law in place for decades. In Oregon and other states, legislatures have prohibited municipalities from banning genetically modified organisms. In Colorado, the legislature has banned the use of any municipal ordinances —including zoning ordinances—from prohibiting oil and gas extraction.

The power of municipalities to legislate is also limited by the “rights” of private corporations. Because corporations have been recognized as having the same constitutional rights as persons, towns and villages cannot adopt laws that violate the personhood rights of corporations. This is the status of the law in New York and across the United States.

Even the power of the federal government is limited by those so-called rights, as evidenced by the U.S. Supreme Court’s Citizens United and McCutcheon decisions, which gutted campaign finance laws as a violation of corporate rights of free speech. The Supreme Court further affirmed the status of private corporations as legal persons in the recent Hobby Lobby decision, determining that not only can corporations have religious beliefs, but that those beliefs can be used to insulate them from certain federal laws.

In much the same way, the power of towns to ban fracking is limited by the “right” of oil and gas corporations to engage in commerce (that is, to conduct extractive activities and sell the extracted materials) and to have communities pay corporations for the loss of oil and gas resources if local laws prevent such extraction.

Community rights and the courts

The court, in deciding the Dryden and Middlefield cases, faced potentially conflicting state laws—one that delegated zoning power to communities so they could preserve their small-town character, and another that preempted local regulation of oil and gas operations.

In places that have Community Bills of Rights in place, no new fracking has occurred.

The court found that the language of the state’s oil and gas law only limited the power of towns to regulate how oil and gas extraction occurs, rather than where in the town it occurs. Since the where in these towns had rapidly become nowhere as they enacted zoning ordinances prohibiting extraction, the court needed to determine which state law trumped which.

This is where we begin to understand the power of collective action and how it can drive fundamental shifts in our legal structure. Courts and judges are not neutral arbiters of printed law, but can be placed into situations where they are forced to interpret the law differently from what it says.

Bending the law, of course, is what corporations have been doing for more than a hundred years, defining themselves as “persons” with the same constitutional rights as real, breathing people.

Though it happens more rarely, political movements have also forced the courts to bend the law. During the Civil Rights movement, the fear of uprisings in the streets forced the Supreme Court to rule that private corporations accepting public benefits could be held liable for violating the rights of African-Americans under the Fourteenth Amendment of the Constitution.

The power of the people when they join together to advance civil and political rights is so strong that—even when communities use their state-delegated powers for something other than their intended use—courts will bend the laws, where they can, helping maintain the illusion that “we the people” have the right to self-government. How far judges will bend in the future is directly related to how forcibly people seek to redeem this country’s core promises about the right of self-government.

That’s the real meaning of the Dryden and Middlefield cases. They provide some proof that our communities are capable of collective mobilization, and that these actions can change the way that judicial institutions interpret and apply the law.

Planting our feet

Not only is constant vigilance necessary to ensure that the gains won in New York state do not erode, but the people in New York and other states must continue to seize the offensive.

That may mean doing as other communities have done across the United States—moving beyond zoning ordinances to adopt Community Bills of Rights. These local laws codify the civil rights of people to clean water and a healthy environment. They elevate the civil rights of community members above the rights claimed by corporations that seek to operate in their towns. Further, they require that all state laws and regulations be interpreted within the framework of these local bills of rights.

If we don’t move forward in solidarity, we can easily be picked off one by one.

Thus, these laws necessarily challenge the authority of state government, as well as private corporations, to force fracking and other harmful practices into communities by prohibiting corporations and state government from conducting or permitting activities that may override any of these rights.

In enacting local bills of rights, communities are walking in the footsteps of both past and current people’s movements—from the abolitionists and the suffragists to today’s campaigns for marijuana legalization and gay rights—all of which recognized that we must challenge the law in order to change it, driving change upward from the grassroots to the state and federal levels.

Communities from Pennsylvania to Colorado have now enacted Community Bills of Rights. These local laws ban fracking and frack wastewater injection wells, along with state permitting of frack wells and corporate fracking activities that would violate the local bills of rights. In communities that have these laws in place, no new fracking has occurred.

Building on this work, communities in these and other states are joining together to amend their state constitutions. Colorado is the first state in which a constitutional amendment has been proposed that would recognize the right to local self-government. The amendment would empower communities to prohibit activities—such as oil and gas extraction—that would violate their rights to health, safety, and welfare.

If we do not take the offense, as is happening in Colorado and other states, New York’s municipal zoning bans will inevitably go to the chopping block where countless other ordinances across the U.S. have been sent to die. They will become a chit for political factions within the state legislature to trade and sell, likely leading to approval of bills aimed at patching up the preemption loophole that Dryden and Middlefield found—in other words, restoring the right of corporations to force fracking into communities.

The federal government may also take up the charge—driving federal legislation that would remove energy extraction from local authority.

If we want to secure community control, we must plant our feet not on the shifting sands of state-bestowed municipal power, but on the people’s inherent, constitutional, collective right to govern the places where they live. Doing so will not only make all of our efforts stronger, but will also allow those working against fracking to join hands with those working against GMOs, sludge dumping, factory farms, and a slew of other issues whose resolution is dependent on whether or not we govern our own communities.

If we don’t move forward in solidarity, we can easily be picked off one by one. We’ll have to resign ourselves to being controlled by state governments who are, in turn, controlled by the very corporations we seek to restrain.

The people’s movement toward economic and environmental sustainability has begun. Let’s make sure that it’s built on a foundation that can’t be pulled out from underneath us.