[CRNMC] Fwd: CELDF essay on big NY "win" re fracking….

[Kelly Larson]

---------- Forwarded message ----------
From: Paul Cienfuegos <paul at 100fires.com>
Date: Fri, Aug 29, 2014 at 8:23 PM
Subject: CELDF essay on big NY "win" re fracking….
To: Kelly Larson <SolarKelly at gmail.com>, Ali Boecker <alis_element at yahoo.com>,
Ed Oberweiser <edoberweiser at gmail.com>, Charles Wood <ccwood at ix.netcom.com>,
Carrie Durkee <cdurkee at mcn.org>, Sue Boecker <suzyl0l at aol.com>, Willow Rain
<peoplesvoices at yahoo.com>, Peter Scott Norris <petersnorris at gmail.com>,
Karina McAbee Cotler <karinacotler at gmail.com>, Lanny Cotler <
lcotler at gmail.com>, Steve Scalmanini <sscalmanini at yahoo.com>, Madge Strong <
mstrong at willitsonline.com>, Tom Wodetzki <tw at mcn.org>, Lynda McClure <
lynda at pacific.net>, Jenny Burnstad <jmburnstad at yahoo.com>, Jim Tarbell <
rtp at mcn.org>, Doug Hammerstrom <thehahas at mcn.org>, Paul Lambert <
news at kzyx.org>


Greetings to all of my heroes in Mendocino's CR groups, and a few other
friends and allies in the county,

Mari Margil, CELDF's Associate Director, just published this essay in Yes
Magazine about the supposed victory in the New York state court about
fracking, and I wanted to make sure you all got to see it. Please spread it
widely to your people, as I wasn't sure who-all to send it to. I've copied
it below.

Hoping to see many of you on the Mendocino-county-wide roadshow that I'll
be participating in, from October 2nd to 8th or 9th. (As you most likely
already know, the lead organizers are Kelly Larson and Ali Boecker.)

warmly,
Paul C

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http://www.yesmagazine.org/people-power/should-your-town-have-the-right-to-ban-fracking?utm_source=YTW&utm_medium=Email&utm_campaign=20140829
*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.

by Mari Margil <http://www.yesmagazine.org/@@also-by?author=Mari+Margil>
posted Aug 27, 2014

The author is associate director at the Community Environmental Legal
Defense Fund <http://www.celdf.org/>.

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.

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 rights­such that communities have local, democratic,
self-governing authority to decide what happens in their own
communities­authority 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 York­that 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 cases­Dryden and
Middlefield­are 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 gas­or 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 well­of which there are thousands across the Marcellus­uses millions
of gallons of fresh water
<http://www.sourcewatch.org/index.php/Fracking_and_water_consumption>,
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
<http://stateimpact.npr.org/pennsylvania/tag/deep-injection-well/>. 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
<http://www.newscientist.com/article/dn24029-fracking-could-accelerate-global-warming.html>
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
<http://www.law360.com/articles/496292/home-rule-allows-fracking-ban-ny-town-tells-high-court>
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 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.

Yet there has been a lot of talk about “rights” in the ensuing discussion.
For example, the Center for Effective Government wrote
<http://www.foreffectivegov.org/blog/new-york-state%E2%80%99s-high-court-upholds-towns%E2%80%99-right-ban-fracking>
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 government­or, as the court put it,
as a “creature” of the state­a 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
<http://www.ydr.com/ci_22974491/residents-fight-large-farms>. 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
<http://www.envisionjournalism.com/archives/3207>. In Colorado, the
legislature has banned the use of any municipal ordinances
<http://news.heartland.org/newspaper-article/2014/08/13/colorado-court-overturns-ft-collins-fracking-ban>­including
zoning ordinances­from 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 laws­one 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.

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 that­even when communities use their
state-delegated powers for something other than their intended use­courts
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
States­moving 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.

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 movements­from the abolitionists and the
suffragists to today’s campaigns for marijuana legalization and gay
rights­all 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
<http://www.celdf.org/resources-ordinances> 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
<http://www.cocrn.org/colorado-community-rights-amendment-2/> that would
recognize the right to local self-government. The amendment would empower
communities to prohibit activities­such as oil and gas extraction­that
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 found­in
other words, restoring the right of corporations to force fracking into
communities.

The federal government may also take up the charge­driving 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.

------------------------------
Mari Margil wrote this article for YES! Magazine
<http://www.yesmagazine.org/>, a national, nonprofit media organization
that fuses powerful ideas with practical actions. Mari is associate
director at the Community Environmental Legal Defense Fund
<http://www.celdf.org/>.


=======================================


Here's the contrasting story/background:

Zoning Ordinance wins against Fracking

http://earthjustice.org/news/press/2014/ny-communities-triumph-over-fracking-industry-in-precedent-setting-case
<https://www.facebook.com/Earthjustice/photos/a.10150167454470301.407971.15771560300/10154322705985301/?type=1&fref=nf>

HUGE NEWS! In a resounding victory that will ripple across the nation, New
York’s highest court has just upheld the right of towns to ban fracking
within their borders! Our attorneys represented the small town of Dryden,
NY in a furious legal battle with the oil and gas industry, and in the end
justice prevailed! http://ow.ly/ysvk3
<http://l.facebook.com/l.php?u=http%3A%2F%2Fow.ly%2Fysvk3&h=9AQFybxq1&enc=AZOTRzvhy2g_5WY1Ikbsqq0qnJxxrEoRK-AHjZQogMw4za4yHgUMHk4YTdNgtPB6WlQjeJz1uCwGDI_-pmPXwLGfWTnMeEkBGmHVD1SM_kb9IHK-fp0JQaM4JmCYGoAHZawX4OOVbN_gqRVZKGfUY4EE&s=1>

Dryden’s defiant stance in the war against fracking has already inspired
hundreds of communities across the country – from Texas to California – to
enact their own fracking bans. The movement is catching fire but the oil
and gas industry has tried time and time again to extinguish the people’s
will. We hope this huge court victory in New York will embolden even more
communities across America to stand up to fracking even when their federal
and state officials refuse to!



Paul Cienfuegos
PaulCienfuegos.com (dismantling corporate rule work)
100fires.com (my online bookstore)
CommunityRightsPDX.org (local group I co-founded)

paul at 100fires.com
POB 86605, Portland, OR 97286
Cascadia, USA, Mother Earth
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