“Frack Us” Town Home Rule Resolutions

The irony is not lost on us. When he couldn't beat home rule in Dryden or Middlefield, Scott Kurkoski came up with his own home rule initiative: getting town boards to collaborate with frackers. Who ever said these fracking shills weren't clever ? A few town governments in the Southern Tier have passed resolutions written by the Joint Landowner’s Coalition of New York (JLCNY) which characterize any “pursuit of a ban or moratorium [on hydrofracking] to be an irresponsible and premature misallocation of town resources”. In short, to resolve that they would not exercise home rule in the form of land use ordinances. Which is, of course, an indirect affirmation of their ability to exercise home rule, just not “prematurely” - before the DEC regulations are out and the Dryden and Middlefield appeal are decided. Under the circumstances, doing nothing – not adopting a road use and land use ordinance – is the most irresponsible thing a town can do. Since it leaves the town exposed to fracking. http://my.brainshark.com/Fracking-Carrots-and-Sticks425491941 The town initiative is promoted by a new fracking PR group, “Clean Growth Now” in order to get towns to surrender to fracking. http://blog.shaleshockmedia.org/2012/05/09/more-free-advicefrom-fracking-shills/ The resolutions are irresponsible, because they assume that the DEC regulations are going to protect the town – when the regulations have not been issued yet.

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Once the regulations are issued, the town will get fracked under whatever regulations the DEC uses to issue the permits. At that point, there is nothing the town can do about it . Which is what the frackers want, what JLNY wants and what the collaborators on the town board want. The responsible thing to do is pass a moratorium on fracking before the permits are issued to see what the regulations are going to be. This logic is not lost on the dozens of towns that have passed such regulations –and have not surrendered to the frackers. http://www.fractracker.org/fractracker-maps/ny-moratoria/ Likewise, delaying a road use ordinance makes no sense. Since by the time the permits are issued, it will be too late to enact one that would apply to first wells drilled. In each town, the JLCNY resolution has been passed in manner that calls into question the commitment of certain town governments to public participation, democratic procedures, and disclosure of financial interests on the part of local lawmakers. Towns that have adopted the JCLNY resolution have taken legal advice from organizations that have a financial interest in the outcome of the public policy debate on fracking. They have apparently not taken legal advice from organizations that do not have a financial interest in the issue. They have typically passed the resolution without providing any prior opportunity for public comment. And there has been no disclosure by town board members in their financial interest in gas drilling. In short, the resolutions are being used to sell the town out to be fracked – sometimes without even a road use ordinance in place.

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The resolution is not a “neutral” position on gas drilling. Nor does it responsibly address the proposed DEC regulations – since the regulations have not been promulgated. The purveyor of the resolution says as much on its website: “Click here to see map showing towns across the state that passed resolutions supporting natural gas development in 2010.” http://www.cleangrowthnow.org/2012/04/clean-growth-nowpublishes-memo-on-moratoriums-on-natural-gas-drilling/ The foreclosing of public debate on the resolution have allowed bogus rationales for the resolution to stand as fact, without any citations, let alone withstand challenge from an informed citizenry: The JLCNY resolution declares the “pursuit of a ban or moratorium to be an irresponsible and premature misallocation of town resources”, a thinly veiled reference to the supposed costs of responding to the lawsuits JLCNY implies will be brought against towns that protect themselves. The reality is exactly the opposite: industry lawsuits against Dryden and Middlefield sought no monetary award and still failed in court. Clean Growth Now’s legal counsel, Scott Kurkoski was on the loosing sites in those lawsuits. Now he offers towns legal advice on how to sell-out to fracking: http://www.scribd.com/doc/92930678/Free-Fracking-Advicefor-Towns The Community Environmental Defense Council offers its services in drafting moratorium and ban ordinances at no cost to towns. The failure of a town to adopt road use and land use ordinances prior to permit issuance by the state will thereafter severely hamstring the town in dealing with gas corporations.
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The JLCNY’s program is designed to get local governments to unilaterally disarm themselves – in order to allow their roads to be ruined and for their town to be fracked anywhere, with the worst gas well setbacks in the United States: http://www.scribd.com/doc/72545747/Worst-Fracking-Regs And at the mercy of a state agency that has never been able to adequately regulate the oil and gas industry: http://www.scribd.com/doc/76085928/Worst-Practices-at-the-DEC In part, because New York is the only state that has no state tax on oil and gas production, so it has no revenue source to fund regulations http://www.scribd.com/doc/63145742/New-York-State-Gas-ProductionTax Or pay for repairs to state roads and bridges: http://www.scribd.com/doc/74102302/New-York-Shale-Gas-RoadImpact In fact, a town that does not protect itself through either zoning regulations or the exercise of its police powers to protect the health, safety and welfare of its residents is simply allowing the DEC control land-use decisions in the town, abrogating a right that both the Dryden and Middlefield courts affirmed that the town has. http://www.scribd.com/doc/63141534/New-York-Gas-Well-Zoning The fracking charlatans have told towns that they will be subject the town to “takings” lawsuits should they try to institute any controls over drilling after permits are issued, while “takings” claims were not even advanced in the Middlefield/Dryden decisions, because those towns took protective action before

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permits were issued. There have been no successful takings claims against mineral rights or mineral leases in the US: http://blog.shaleshockmedia.org/2012/05/14/no-fracking-takings-innew-york-state/ Gas company shills like JLCNY failed to convince New Yorkers that the constituents of fracking fluids were as benign as lemonade and shampoo. They failed to convince New Yorkers that the financial benefits of fracking will be widely shared, and the social costs minimal. Or that state regulators have the ability/desire to protect the residents of the state – without the assistance of local laws. The shale shills then turned to threatening taxpayers with lawsuits, even after losing in court - twice. Now, they have enlisted town officials to volunteer their towns to be fracked first, at the behest of a few vested interests over the health, safety and welfare of town residents, and to surrender the land-use and police power tools they have. To use their authority as elected officials to collaborate with the frackers. To turn Vichy on fracking. http://blog.shaleshockmedia.org/2012/05/17/vichy-new-york/

Based on material from Mike Bernard

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