Legal Issues
On the issue of a whether a town will prevail if a lawsuit is brought challenging a “carefully crafted ban on high-impact industrial” uses, Mr. Gagnon notes that he has heard that “a good case can be made on either side.” Assuming that Mr. Gagnon is referring to a challenge questioning a New York municipality’s legal power and authority to pass such a ban using land use laws of general applicability (such as zoning laws), I would respectfully like to point out that of the multiple scores of attorneys I am aware of who have actually analyzed this issue, fewer than a handful have questioned the authority of a town to take such a step – and every single one of those few has a financial stake in seeing high-impact industrial uses come to our area (in other words, those few represent drilling companies, people who have leased and are happy they have leased, or people who want to lease.)
Mr. Gagnon next observes that it would be a huge financial burden for a small town to have to defend itself if someone favoring high-impact industrial uses sued the town. There is no question that it would be financial burden to have to defend such a suit. But, again respectfully, I would submit that the inquiry should not end there.
FIRST, the terrible tangible costs that a town are certain to incur if high-impact industrial uses (such as unconventional gas drilling) are allowed in should be considered, only some of which are: road damage, diminution of property values, traffic, air and noise pollution (and associated health costs), and loss of and damage to tourism- and recreation-related businesses that are dependent upon the non-industrial nature of our area. There are countless other costs to consider, as well, both intangible – loss of many of the things that make the area where we live so special – and tangible – costs of remediation and clean-up (assuming a particular problem can even be cleaned up) if the industry’s presently spotless record (“there has never been a single documented case” of a problem) doesn’t hold up in the future.
There are other types of lawsuits municipalities could face by passing a ban, but the train has left the station as to the issue of whether a New York municipality has the legal power and authority to protect its character and other assets from the threat of high-impact industrial uses by using land use laws of general applicability.
If you (readers of this post) hear any lawyer say that a town does not have such power and authority, stop her in her tracks, and ask her whether she has actually analyzed this question, and whether she represents drilling companies, companies which service drilling companies, people who have leased (and are glad they did), or people who want to lease.
Most importantly, as to the cost of defending a lawsuit against the town by someone challenging the town’s authority to pass such an ordinance, please take the time to weigh that expense against the terrible costs that are certain to be suffered by the town and its people if such an ordinance is notpassed. And please consider asking your elected local representatives to make the same calculation.
David F. Slottje, Executive Director and Senior Attorney
Community Environmental Defense Council, Inc.
Ithaca, NY