A shorter version of this appeared in Yes! magazine Feb. 29, 2012. This is the full version, but it was written before the Middlefield ruling.
The fight to keep the
destructive practice of fracking for “natural” gas is perhaps nowhere more
critical than in New York State. Megabillion-dollar corporations, not content
with the destruction they’re wreaking in Pennsylvania, West Virginia, and 30
other states, have set their sights on drilling in rural communities in the
Southern Tier and central parts of the state. There the economy has been
sluggish for decades, farmers struggle, and people work hard yet barely make
ends meet — communities ripe for exploitation by an unscrupulous industry.
But the industry
didn’t bargain for Hilary Lambert, or Judy Pierpont, or Marie McRae, or any of
the tens of thousands of activists who have mobilized to ban fracking in
townships across the state before it begins. Or the pro bono attorneys who are
helping many of them.
This is the story of
one township, Dryden, New York, smack in the center of the state, where about
13,500 people occupy 95 square miles of rolling hills, deep glacial valleys,
small towns, and the larger metropolises of Dryden (population about 1,850) and
Freeville (500), all blessed by six watersheds.
The Town of Dryden has
just won Round One in a bout with Anschutz Energy Corporation, owned and run by
one of the richest men in the USA.
On August 11, 2011,
the Dryden Town Board unanimously passed an ordinance and zoning amendment that
bans all oil and gas exploration and development activities in the town. It
wasn’t the first New York State town or county to pass a ban or
moratorium—there are now about 82, with at least another 35 in the works—but
something about Dryden must have really irritated the guy who runs
Colorado-based Anschutz Energy Corporation, which had leased a lot of land in
the town, to the tune of almost $5 million.
The Argument
That guy is Philip
Anschutz, who’d built his $7 billion fortune on oil, railroads, telecomms,
sports, and entertainment. On September 16, 2011, Anschutz’s high-powered
Albany lawyers from the West Firm filed a lawsuit against Dryden to overturn
the ban. They claimed that the Oil, Gas, and Solution Mining Law, Article 23 of
the State Environmental Conservation Law supersedes all local regulations
relating to oil and gas activities except
as applied to local roads and real property taxes.
In other words,
Anschutz claimed that Dryden has no rights to make local law when it comes to
oil and gas, except to regulate road use and property taxes. It couldn’t
determine where, if at all, the drillers could place their equipment, toxic
waste impoundments, compressor stations, and the other heavy-industrial
paraphernalia the industry requires.
But Judge Phillip
Rumsey of the New York State Supreme Court ruled on February 21, 2012 that
Dryden does indeed have the right to prohibit fracking in the town.
“Judge Rumsey gave a
very reasoned, well researched, well articulated decision,” says Mahlon
Perkins, who has served as Town of Dryden attorney for 33 years. “I think it’s
going to stand up on appeal.”
Great Legal Minds
The activists who
worked so hard over nearly three years to pass the ban —most of whom had no
prior experience in politics or environmental activism before this — were
jubilant at the news, but not entirely surprised.
“I think it will
become clear that we’re standing on solid ground,” says Judy Pierpont, who
retired as a senior lecturer in English from Cornell University in 2009 and has
spent most of the time since then working to ban fracking. “We had great legal
minds working on this.”
Those great legal
minds are primarily those of Helen and David Slottje, whose research formed the
basis for the Dryden ban. Through their Ithaca law firm, Community
Environmental Defense Council, Inc., the couple has counseled more than 50 municipalities
around the state, doing all the work pro bono and relying on donations from
individuals and foundations to help support the efforts.
They’ve been vilified
by the gas industry along the way — that very industry that spends upwards of
$130 million a year on advertising and lobbying to sway the public and
legislators. Those attacks serve only to make this tenacious pair more
determined than ever to help towns fight for their rights.
A decade ago, says
Helen Slottje, she never would have imagined in her wildest daydreams that
she’d be where she is today, at the forefront of a people’s movement to wrest
control of their health, their communities, their government, and their future
from corporations run amok.
“David and I are the
least likely environmental activists you’d ever meet,” she laughs. “We were
evil little corporate lawyers. We believed in what we were doing. I was
president of my local Women’s Republican Club. When we first moved to Ithaca in
2002, I joined the League of Women Voters to meet like-minded people.”
But she didn’t fit in.
“They were Ithaca hippies,” Slottje says. “They didn’t think we should go to
war with Iraq unless the UN agreed. I thought that was ridiculous. Not that I
was pro war, but I didn’t buy any of those UN arguments. So I quit.”
But something changed
in both Slottjes, beyond just the influence of the famously liberal town they’d
moved to and any tie-dyed, Birkenstock-wearing people they encountered there.
“As time went on,”
says Helen Slottje, “I became increasingly disgusted with Bush-Cheney — the
backroom handshake deals, their arrogance, their assumption that they can do
whatever they want, no matter what the people think or what’s right. Remember
Cheney’s secret energy commission, with all those oil people? The recount in
Florida? It took a while, but I eventually realized it was insanity. The reason
we help with the towns now is that we hate bullies. And we know the quality of
thinking from the other side. Dryden and all these communities need to have the
best legal representation they can have — and not be bullied.”
The Dawning
In early 2009 people
in the Town of Dryden were just becoming aware of fracking, and that summer, a
group met for the first time, hosted by a family who lived on a CSA (community
supported agriculture) in an off-grid house with a wind turbine and orchards.
After that first meeting, a core group began meeting regularly, primarily
around the issue of fracking.
Dryden Resource
Awareness Coalition (DRAC) evolved; its 10 to 20 most active members would
become the core of the town’s efforts, but the organization has no real
hierarchy or structure. And that’s the way they like it.
“We set biweekly
meetings, reserved space in Town Hall, and people just started showing up,”
says Pierpont. “It’s a very loose group. People found their niche and
contributed in whatever ways they could. Anyone can participate. We have no
officers. Sometimes Marie [McRae] will get organized and make an agenda, and
we’ll add to it, or sometimes Joe [Wilson] will be organized. At our last
meeting we just made up the agenda on the spot. There are no specific
responsibilities. We work by consensus. People volunteer for things, and people
emerge as leaders.”
That was a new
experience for everyone, perhaps no one more so than Wilson, who retired in
2009 from his long-time role as high school principal; he’d previously been a
practicing lawyer and had lived in Baltimore and other cities before taking the
job of principal at Ithaca High School and moving to Dryden with his wife, Marty.
“All my experience,”
says Wilson, “had been in hierarchical organizations with formal planning. We
even had plans on how to execute plans. I learned that significant things can
be accomplished by people operating as a collaborative with virtually no
hierarchy, coming to consensus on both what’s the right thing to do and on how to get it done. I also
learned there’s power in such groups. It’s not futile to find grassroots groups
that want what you want, band together, and lean on elected officials to move
in the direction you favor.”
By early 2010, says
Jason Leifer, a town board member who has served since 2007, at least some
members of the board knew fracking was not something they wanted for Dryden. “I’d
been reading blogs by people from other shale plays, in Texas, Wyoming,
Colorado, who were writing about the bad things happening in their areas,” he
says. “Spills, too many trucks, the trend toward suburban drilling. This was
nothing like the old vertical wells.”
Leifer and town
supervisor Mary Ann Sumner began talking about how the town might deal with
fracking if it were to come to New York State. They thought vaguely about
zoning, but Leifer, an attorney in private practice, didn’t have time to
research the issue, and it lay dormant for a while.
“It seemed odd to
me that we could have a say in cell towers — which have far less of an impact
than a gas well,” says Leifer. “It made no sense. We should have some say in
where these things go, if they go anywhere. But I didn’t realize we could do a
ban.”
Making Connections
Meanwhile, activists
in the Town of Ulysses, 22 miles west of Dryden, were moving ahead with
door-to-door petitioning for a ban, based on the research done by the Slottjes
that showed while towns are not permitted within New York State law to regulate the industry, prohibiting the activity of the industry
in the first place avoids the problem of interfering in the industry’s conduct
of its business.
The DRAC folks had
connections with the Ulysses and with activists in other local towns who were
working toward a ban, especially Ithaca, Danby, and more distant Middlefield.
They were all trying something totally new, blazing new ground, and with the
Slottjes’ counsel, each community was trying to customize what would work for
its own unique character and needs.
“Initially, like the
other communities, we didn’t think we had a right to ban fracking,” says Marie
McRae, who owns and operates a small private horse boarding facility in Dryden
and was invited to that first session by her hay supplier. McRae had signed a
gas lease in 2008 after being “chased by a landman for nine months,” she says.
“He told me that all the other land around was leased, and if I didn’t sign
they’d come and take the gas from my land anyway. ‘This lease is your last chance
to have a say about what happened to your land,’ he told me. That’s a lie, as I
later learned, but I signed. Then I curled up in a fetal position, mentally,
for about six months.”
But then McRae, who
had never been remotely interested in, let alone involved in politics, woke
up—and she has long since made up for any lost time. She found the DRAC group
and joined, becoming a core member and frequent out-front spokesperson.
After Ulysses
activists came to Dryden and gave pointers about how to petition for a ban,
DRAC wrote a simple ban statement and began going door-to-door and collecting
signatures.
“We divided up the
town in a very unsystematic way,” recalls Pierpont. “I didn’t even know my
neighbors at the time, but I made the choice to be responsible for my own area
of the town. We started out with about eight of us, but then friends, and
friends of friends, and friends of friends of friends joined. We also had an
online petition, which was very helpful. If people weren’t home, or family
members weren’t all there when we were, we left a printout with the petition
online address, and we could send letters or e-mails to friends to let them
know about it. One of our members, Peter Davies, managed all this.”
The canvassers found
that 80 to 85 percent of those they approached were ready to sign the ban
petition. But if people’s minds were made up on the other side, some would not
even engage in conversation.
Media Role
“I relearned how
important perceptions are,” says Wilson, “and how instrumental various media
are in forming people’s perceptions.”
The people who
believed fracking is “safe, clean, and domestic” shared their views and
opinions in language that was straight out of gas company commercials, Wilson
noted. They’d heard industry ads and thought of them as news.
“What people see
on TV and in major publications is shaped by the gas companies’ ability to get
broadcasters and reporters to use a position favorable to energy companies as a
point of departure,” Wilson says. “They think they know facts, and therefore
they disagree with us. Mainstream media are very powerful in creating frames of
reference which we then have to deal with.”
During four
months of canvassing, DRAC was also hosting community forums on fracking, where
people could hear perspectives not generally available to those getting their
news from mainstream media. That helped change some minds, reports Wilson.
“Taking media at
its broadest to include the efforts of opinion shapers within communities, it
was clear that people perceived to be disinterested had more of an impact,” he
says. “People who seemed to move opinion best were the physicians and
scientists, considered bound by their professions to be even-handed, unbiased.
People were also ready to sign if they’d gotten their information from
[non-mainstream] sources, such as reading a letter to the editor from someone
trusted in the community, or if the veterinarian they’ve been going to for
along time says fracking will harm animals, or if [environmental scientist] Dr.
Bob Howarth says the methane leaks will have climate change effects.”
Taking It to the Board
And the Slottjes,
who patiently explained complicated legal matters over many visits to Dryden,
were influential on the residents and on the board. They recommended that Dryden
and other municipalities who wanted to keep control over land use and avoid
industrialization adopt a zoning law or amendment that specifically prohibits
high-impact industrial use, which should be defined as “encompassing
unconventional gas drilling and any other use they considered inimical to the
municipality’s character and goals.”
The Dryden Town Board
held two official public hearings, where the majority of speakers spoke against
fracking. On April 20, 2011, at a board meeting packed with more than 100
residents, almost all of whom supported the ban, DRAC announced that it had
gotten 1,594 signatures on the petition. Thirty of those signers got up to
speak for two minutes each. Longtime resident and former Dryden Planning Board
member Buzz Lavine said, as DRAC reported, “The federal and state governments
cannot protect us. The power to do that is right here in this room.”
At that meeting an
audience member warned that the town might be sued by a big gas company. David
Slottje assured the board and the crowd that long legal precedent existed for
towns to zone out undesired uses.
The Opposition
While all this
positive work was going on to protect the town from dangerous
industrialization, pro-drilling forces were hard at work in the town, led by
resident Henry Kramer. In July 2011, Kramer and a few allies formed a group
called “Dryden Safe Energy Coalition” (with the slogan “safe energy development
for jobs and prosperity”), purporting to be an educational, unbiased
organization but actually strongly pro-fracking. It claimed, using convoluted
math, that banning fracking would steal $175 million from the town.
It’s widely believed
among antifracking Dryden residents that Kramer and this group, who threatened
the town in a letter dated August 1,
2012, set the town up for the lawsuit by Anschutz. Certainly the presence of a
vocal pro-fracking group in town must have given the gas corporation some
reassurance. In September the board
— consisting of four Democrats and Republican Steve Stelick — voted unanimously
for a fracking ban in the town, in full knowledge that a lawsuit might ensue
but determined to keep the town safe.
And elections heated
up, with three pro-fracking candidates, including one running against incumbent
Mary Ann Sumner for town supervisor, facing off against three antifrackers in
what would come down to an all-but-single issue election on November 8.
Days before the election, in a courtroom heavily
peopled with Dryden antifrackers and supporters from neighboring towns, Perkins
presented a strong case before Supreme Court Justice Phillip Rumsey. Using his
own research built upon work done by the Slottjes, he challenged the insistence
by Anschutz lawyer West that the state and its Department of Environmental
Conservation have power to interpret the State Environmental Conservation Law,
and claimed that only towns have land use management rights. Apparently West
argued well, too, as Rumsey complimented both sides before adjourning.
On November 8, all the antifracking candidates
won board seats, solidifying another solid 5-0 pro-ban town board makeup.
Three months later, the judge handed down his
decision, and many sighs of relief were heard around Dryden on the evening of
February 21.
Most DRAC members and the Slottjes think it’s
likely Anschutz will appeal within the 30-day time limit. And if it doesn’t go
after Dryden again, it will probably pick on a more vulnerable town that hasn’t
built such as strong activist network and governing board. That’s what bullies
do, pick on the weak.
And if there’s one thing Helen Slottje hates,
it’s bullies.
“These gas companies
are waging war on people, on communities,” she says. “You see this kind of
bullying all over. In West Virginia, Morgantown passed a ban, and Chesapeake
[Energy Company] took away the money they were donating for the school band.
They get communities dependent on them, and then they use that dependence to
buy silence. And towns don’t have good legal representation, so they get
bullied, beaten up. The gas companies launch smear campaigns and make people’s
lives miserable. That makes me angry. That’s what motivates me.”
Fortunately for many towns in New York State,
the Slottjes’ continued motivation —anger at ongoing gas industry bullying — will help them fight the some of the
most powerful corporations in the world.
And for Dryden activists, even while waiting to
see if Anschutz files an appeal, there’s plenty yet to do.
Hilary Lambert, who spent 20 years as a coal
activist in Kentucky before moving back to her childhood home in Dryden, is
steward of the Cayuga Lake Watershed Network. She’s keenly aware of how blessed
New York State is with its abundance of clean, fresh water.
Positive
Steps
“Some people say that to say ‘No’ to natural gas
makes you a NIMBY,” Lambert points out. “We’re very concerned about this. It’s
a crowded world, and it’s getting more crowded. We know we have to take care of
everybody’s water, everywhere. We work with everyone across borders, across
Appalachia and every other part of the country. Without clean water, we don’t
have anything.”
Beyond that, she and several other members of
the core group have pledged to change energy choices in their daily lives as
much as their means permit. “We need to move away from fossil fuel dependence
toward renewables,” she acknowledges, “even as we fight gas extraction.”
Through a project of the Tompkins County Cooperative Extension, which works
with self-selected neighborhood groups, they’re taking advantage of programs to
get energy assessments, home retrofits, and grants to help with conservation
and installing renewable energy sources.
At Wilson’s urging, DRAC members are also
planning to get the town board to put in place secondary protections, as a
security measure: road, air quality, critical environmental area designations,
rules about setbacks around wellheads. “Our county’s council of governments has
a spreadsheet that lists 15 or 16 different municipal tools to enhance the
protection of citizenry against fracking,” says Wilson. “We’ll be working on
model regulations for the so-called gathering lines, pipes taking the gas from
wellheads to compressor stations. No one regulates them now—not the feds, or
the state, or municipalities. Perhaps this is something municipalities can claim.”
McRae expects, as many in Dryden do, that
Anschutz will appeal. That process might take 12 to 18 months. “I see us
winning that,” she says. While waiting, the onetime quiet, politically
disengaged farmer won’t be sitting around. “I’ll be doing public educating,”
she says. “I’ll continue to help organize forums to teach people about the
legal and political process, and about corporations and what they want to do to
us. And, very important to me is helping farmers remain viable — getting young
farmers started and finding new ways for older farmers to use what they already
have.”
Pierpont has already been helping other towns
build their case for a ban, and plans to continue doing so as long as any
municipalities still need assistance. “We’ve learned so much,” she says. “I
want to use that knowledge to help other communities.”
Gratitude
In all this activity, would DRAC and friends
think about taking a little break to kick back and celebrate their success? As
it happens, Dryden’s first brew pub, with New York State’s only female master
brewer, has just opened, so they intend to pay a visit to Bacchus in the next
week or so.
There is much to celebrate, beyond the court
decision. “I’m grateful for our brave town board who voted to ban a heavy
industry, even knowing they might be sued,” says McRae. “I’m grateful to
Ulysses and the Slottjes. I’m grateful to town attorney Mahlon Perkins for
taking us through that first page and making the argument that would be
understood by Judge Rumsey.”
And all of the DRAC
members — who, except for Lambert, are all first-time activists over fracking —
echoed one theme, as articulated by Pierpont: “I’m so grateful for all the
people I’ve come to know, and all the work they’ve done for our community.”
Pierpont adds, “And it feels like affirmation
that when you have integrity in a legal system, things can work. We were
besieged by somebody with a lot of money and a certain ill will, and we were
lucky to get an honest, reasonable judge who looked at this very fairly. We’re
fighting to keep our communities safe, but also for the viability of our system
of democracy. If we don’t defend it, it goes down. In this case, it worked.”
Photos by Hilary Lambert
Signs seen around Dryden (top), and DRAC rally, October 2011
DRAC's Judy Pierpont with attorney Helen Slottje and Shaleshock leader Sara Hess at a neighboring town forum
Dryden Town Hall packed for the town board's unanimous decision to sign the ban
We say YES to cutting all use of fossil fuels in this country. If small
countries like Germany, Sweden, and Denmark have already turned to
solar, wind, and hydro power, why shouldn't the "greatest country on
earth" be able to do so?
