Thursday, March 01, 2012

How One Town Beat a Billionaire Bully

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.”
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