A public information session concerning a moratorium on hydraulic fracturing in the town of Fairfield took place Wednesday night at West Canada Valley Central School.
David Slottje, executive director and senior attorney for the Community Environmental Defense Council, explained the availability of local government land use authority to safeguard health, safety and community assets from the impacts of hydrofracking.
The Community Environmental Defense Council is a nonprofit public interest law firm based in Ithaca. It is dedicated to using the power of law to help communities and citizen groups in New York whose land, air, water, health and quality of life are threatened by resource extraction activities and associated industrialization. The group provides free legal advocacy and assists communities to obtain the benefit of local environmental protection laws.
The three issues Slottje discussed were how to address land use authority, common arguments and threats made against protective laws, and the risks of waiting to enact protective laws.
“Municipalities have the right to enact zoning authority and police power to protect their communities,” said Slottje. If a municipality is not certain whether to allow the fracking industry in he suggested “members of the board should preserve their options by considering the enactment of a specific, but common type of land use law called a moratorium.”
A moratorium may be adopted as a stop gap to halt development while a municipality considers their options before a decision to hydrofrack is considered, he said adding the moratorium allows for communities to further research in to the matter before to making a final decision.
In the court case People vs. Bunis, Slottje presented the fact there are always limitations to prevent injury to the right of the community and neighbors.
“A person’s ability to pursue what is otherwise lawful may be curtailed if this infringement and deprivation is reasonably necessary for the common welfare,” he said.
This, Slottje said, means members of a community who are for hydrofracking and wish to have drilling pursued on their land could cause harm to others around them. Because the welfare of other community members could be in danger, the landowner cannot pursue the act of drilling, he said.
“When it comes to the prevention of damage to others, the community legally trumps the right to exploit natural resources,” said Slottje.
A municipality can also use its police power to prevent damage to the community and limit the exploration of natural resources, he said adding a taking is another argument. This is an argument made by a landowner who has been denied the ability to exploit a property interest that was believed to be available for development. An argument such as this can be brought to the Supreme Court.
There are many risks if a municipality waits to enact a moratorium, said Slottje.
Page 2 of 2 - By waiting the Department of Environmental Conservation could issue drilling permits within a specific municipality, he said adding by waiting a municipality can lose it’s protection and control due to the municipality’s lack of specifics regarding local land law uses.
Waiting to enact a moratorium can effect also the issue of liability and become very expensive to taxpayers if drilling occurs within the community, he said.
Lastly, Slottje said the difficulty of proving a regulatory takings claim changes depending on if the challenge was enacted before or after the DEC issues permits.
For more information regarding a moratorium, visit the Community Environmental Defense Council website at www.cedclaw.org.