ALBANY, N.Y. (AP) — A natural gas drilling company is taking a new tack in the industry's fight against local drilling bans: It's threatening to sue if New York regulators don't step in and extinguish the prohibitions.
John Holko, president of Lenape Resources, sent a letter Thursday to state Department of Environmental Conservation Commissioner Joe Martens saying a moratorium prohibiting natural gas development in the Livingston County town of Avon forced his company to shut down its wells there.
The state enacted a drilling moratorium in 2008 when DEC began an environmental review of horizontal drilling and high-volume hydraulic fracturing, or "fracking." Lenape's wells in Avon, however, are vertical wells that were not subject to that moratorium. The town law doesn't distinguish between types of wells, but Town Supervisor David LeFeber said it was worded to protect Lenape's existing wells.
Regardless, Holko said Avon's moratorium and others like it violate a 1981 law that says state rules supersede local ordinances in the regulation of gas development.
"Lenape is trying to make it clear to DEC that the agency has a legal duty to carry out state law," Michael Joy, Lenape's lawyer, said on Monday. "That duty includes informing local municipal governments that they don't have the authority to regulate the oil and gas industry."
In the past, DEC has sent letters to towns that enacted laws regulating oil and gas development, telling them they didn't have the authority to do so. In its letter to Martens, Lenape attached one such correspondence, sent to the city of Olean in 1984.
David Slottje, an Ithaca lawyer who helps towns draft moratoriums or bans on gas drilling, said in a letter to Martens on Tuesday that since two courts have upheld local bans, DEC doesn't have to tell the towns to repeal them.
More than 30 municipalities in upstate New York have passed bans on gas drilling and more than 80 have enacted moratoriums in anticipation of DEC completing its environmental review and lifting the 4-year-old state moratorium. The actions are in response to fears that fracking, which frees gas by injecting a well with chemically treated water at high pressure to crack rock deep underground, could contaminate water supplies or cause other harm. Drillers and DEC say state regulations and standard industry safeguards protect against harm from drilling and fracking.
Martens has said that local ordinances will be taken into consideration when the agency approves permits for shale gas wells.
Denver-based Anschutz Resources took the town of Dryden to court over its ban and a Middlefield landowner sued over that town's ban. Both laws were upheld by judges who said bans are not regulation, so the state law against local regulation of gas development didn't apply. Albany lawyer Tom West has said the decisions will be appealed.
Local control over gas drilling has also been an issue in other states in the Marcellus Shale region, which includes southern New York, Pennsylvania, Ohio and West Virginia. The gas industry says local laws create a patchwork of regulation that thwarts development.
A Pennsylvania court last week ruled that the state can't restrict localities from using zoning laws to regulate oil and gas drilling within their borders. Ohio townships were stripped of regulatory authority over gas drilling under a law passed in 2004. Ordinances enacted by a handful of West Virginia communities to ban gas drilling were overturned last year by a judge who said the state has sole authority to regulate the industry. Morgantown, W. Va., enacted new zoning ordinances recently that restrict drilling to designated industrial zones; an industry group has said it may challenge that in court.
Deborah Goldberg, an attorney for the environmental group Earthjustice who represents Dryden, said Lenape is wrong in saying DEC has an obligation to take enforcement action against towns that ban drilling.
"To the contrary, the statute plainly gives the agency discretion over enforcement," Goldberg said via email. "Under the circumstances, it would be a waste of scarce resources if DEC were to take action before the appellate courts resolve the pre-emption claims."
DEC apparently agrees.
"The scope of the pre-emption must be left to the courts," DEC spokeswoman Emily DeSantis said by email.
Lenape said if DEC doesn't take action against the town of Avon, the company will do so and will name DEC as a party in the lawsuit.
Lenape's broader goal is to send a message to other municipalities that they don't have the authority to enact gas development bans or moratoriums, Joy said.
PRO: Potential Energy Independence
Estimates by the <a href="http://www.eia.gov/pub/oil_gas/natural_gas/data_publications/crude_oil_natural_gas_reserves/current/pdf/arrsummary.pdf" target="_hplink">United States Department of Energy</a> put the number of recoverable barrels of shale gas at around 1.8 trillion. To put that into perspective, Saudi Arabia is estimated to have roughly <a href="http://www.opec.org/opec_web/en/data_graphs/330.htm" target="_hplink">2.6 trillion barrels of oil reserves</a>. Christopher Booker writes for <em>The Telegraph</em><a href="http://www.telegraph.co.uk/comment/columnists/christopherbooker/8500496/Shale-gas-could-solve-the-worlds-energy-problems.html" target="_hplink"></a> that there are enough world reserves to "keep industrialised civilisation going for hundreds of years"
CON: Water Pollution
A <a href="http://switchboard.nrdc.org/blogs/amall/incidents_where_hydraulic_frac.html" target="_hplink">blog post by the Natural Resource Defense Council</a> explains that "Opponents of such regulation [of fracking] claim that hydraulic fracturing has never caused any drinking water contamination. They say this because incidents of drinking water contamination where hydraulic fracutring is considered as a suspected cause have not been sufficiently investigated." It then goes on to list more than two dozen instances of water pollution to which hydraulic fracking is believed to have contributed. A <a href="http://insideclimatenews.org/news/20111104/gasfrac-propane-natural-gas-drilling-hydraulic-fracturing-fracking-drinking-water-marcellus-shale-new-york" target="_hplink">new waterless method of fracking</a> has been proposed, but environmentalists are skeptical.
CON: Leaks More Emissions Than Coal
Methane is a greenhouse gas and <a href="http://www.ucsusa.org/clean_energy/technology_and_impacts/energy_technologies/how-natural-gas-works.html#enviroimpacts" target="_hplink">major component of shale's carbon footprint</a>. Cornell Professor Robert Howarth said about a study he conducted, "Compared to coal, the footprint of shale gas is at least 20 percent greater and perhaps more than twice as great on the 20-year horizon and is comparable when compared over 100 years."
PRO: Burns Cleaner Than Other Fossil Fuels
<a href="http://www.scientificamerican.com/article.cfm?id=natural-gas-could-serve-as-bridge-fuel-to-low-carbon-future" target="_hplink">Researchers at MIT found that</a> replacing coal power plants with natural gas plants could work as part of a plan to reduce greenhouse emissions by more than 50 percent.
CON: Hydraulic Fracking Has Been Linked To Earthquakes
<a href="http://oilprice.com/Energy/Natural-Gas/U.S.-Government-Confirms-Link-Between-Earthquakes-and-Hydraulic-Fracturing.html" target="_hplink">Several earthquakes both in the U.S. and abroad </a> have been linked to the hydraulic fracturing process. One British company, <a href="http://www.cuadrillaresources.com/cms/wp-content/uploads/2011/11/Cuadrilla-Resources-Press-Release-02-11-11.pdf" target="_hplink">Cuadrilla Resources</a>, admitted in a report that its hydraulic fracturing process well "did trigger a number of minor seismic events."
<a href="http://www.treehugger.com/fossil-fuels/facts-on-fracking-pros-cons-of-hydraulic-fracturing-for-natural-gas-infographic.html" target="_hplink">The industry currently employs more than 1.2 million people</a> in the U.S., and the Department of Energy estimates that natural gas resources have increased nearly 65 percent due to fracking, according to a TreeHugger graphic. Additionally, <a href="http://www.bu.edu/energy/files/2011/07/Fracking-article-Sept-14-2011.pdf" target="_hplink">the gas industry accounts for about $385 billion</a> in direct economic activity in the country, a <em>Nature</em> piece reports.
CON: Companies Don't Have To Disclose Chemicals Used In Process
<a href="http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/wells_hydroreg.cfm" target="_hplink">Fracking is exempt from the Safe Drinking Water Act of 2005</a>, thus allowing companies to conceal the chemicals used in the process.
PRO: Buys Time To Develop Renewable Energy
Former chief of staff to President Clinton and former head of the Center for American Progress <a href="http://www.businessweek.com/magazine/could-shale-gas-reignite-the-us-economy-11032011_page_2.html" target="_hplink">John Podesta says natural gas can serve</a> "as a bridge fuel to a 21st century energy economy that relies on efficiency, renewable sources, and low-carbon fossil fuels."
CON: Requires Large Amounts Of Water
The fracking process can require around <a href="http://www.hydraulicfracturing.com/Water-Usage/Pages/Information.aspx" target="_hplink">five million gallons</a> of water. In some cases<a href="http://www.treehugger.com/fossil-fuels/facts-on-fracking-pros-cons-of-hydraulic-fracturing-for-natural-gas-infographic.html" target="_hplink"> less than a third of that water is recovered</a>.