NY Legal Approach Bans Fracking in over 180 Towns

Link to Original Article, “The Real Secret to Beating the Koch Brothers.”

The Real Secret to Beating the Koch Brothers

By Lindsay Abrams, Salon | 29 April 14

ou probably haven’t heard of Helen Slottje, or, for that matter, of her husband, David. But in the past few years, the former corporate lawyers have become arguably two of the most powerful opponents of fracking in New York — not to mention the most successful. As the (sort of) public face of the duo’s efforts, Helen Slottje on Monday was honored with the Goldman Prize, the world’s largest environmental prize.

Like most fracktivists, the Slottjes became embroiled in the issue when they moved to an area targeted by drilling companies — in their case, upstate New York, which sits atop the gas-rich Marcellus Shale, and where Gov. Andrew Cuomo has repeatedly put off making a decision about whether to lift the state’s five-year moratorium on hydraulic hydrofracking. Lacking confidence in the power of the picket sign or citizen engagement on oil-funded big government, they instead decided to approach the program at the most basic level. Their weapon of choice is a principle known as home rule: If individual communities decide that these industries pose a significant risk to common resources like air and water, then those communities can decide to keep those industries out, regardless of what state and federal laws say.

One by one, the Slottjes have helped small towns in New York enact such bans, to the point at which, even if New York’s moratorium were to be lifted tomorrow, the oil and gas industry would find itself effectively barred from drilling in 172 communities. After being decided in the towns’ favors at all of the state’s lower courts, two of those cases, in Dryden and Middlefield, are now up before the Court of Appeals. A decision, which will determine whether towns have the right to override state law, is expected this fall, and its anticipated impact can’t be overstated. As Thomas West, a lawyer for the energy company seeking to have the ban overturned, told the New York Times last year, “It’s going to decide the future of the oil and gas industry in the state of New York.” (The Slottjes, it should be noted, weren’t even mentioned in the piece.)

As for why you haven’t heard of the Slottjes? That, Helen told Salon, was entirely intentional — the due diligence of people who were making a powerful industry very, very angry. Up until the redesign hit several weeks ago, you couldn’t even find their names on their website. Winning the prize, which comes with $175,000 and an international spotlight, changes all that, putting them at potential risk. But, Helen said, it also presents the opportunity to teach their brand of gras-sroots legal activism to more communities, including those in other states. In that spirit, Helen (picture left) stopped by Salon’s offices to open up about her personal story for one of the first times. Obviously, there was a lot to talk about — this interview has been lightly edited and condensed for clarity.

So to start, could you tell me more about how you got involved in this battle?

My husband, David, and I were former corporate lawyers — we had stopped practicing and moved to upstate New York because it was just too much. My husband’s brother was looking for a second home in the area, so we went out in 2007 looking at “gentleman farms” for him. And everywhere we went there were gas leases on the property. There’d be a little box on the description form, and when you’d ask the realtor about it, they’d say, “Oh, it’s no big deal, nothing to worry about, it’s never amounted to anything around here. Don’t give it a second thought.”

David, being a lawyer, and having started out practicing in Texas, was like, “There isn’t any such thing as a no big deal, don’t worry about it, oil and gas lease.” That’s a big issue to have one of those on your property. We sort of filed that away, and in 2009 — finally, it took me two years to get to that item on my to-do list — I went to a gas drilling meeting. There were a number of these people who were starting to get educated and beginning to think that maybe this wasn’t “no big deal.”

Every one who spoke at the meeting said there’s nothing you can do, because that’s what everyone believed. An activist showed pictures from Pennsylvania — the sort of pictures we’ve all seen at this point — of just these huge industrial outdoor complexes with diesel generators and big lagoons of waste, and drill rigs and the like. So not only were there all these negative social impacts, it was just, “That is ugly! That is just really ugly and toxic.” It just seemed to me wrong that there was nothing we could do. The way you become a successful corporate lawyer is by figuring out any and all ways to get your client exactly what they want. If you tell a corporate client like the Koch brothers, “Oh no, you can’t build that factory,” they’re not going to not build that factory. They’re going to go find a lawyer who can get it done. It’s just a mind-set.

But the people signing the gas leases were getting money for doing so, right?

So the first Marcellus well was drilled in 2005 in southwestern Pennsylvania, and it seemed like it would be successful. Range Resources [the company that first developed the shale] kept it as much under wraps as they could, and then sent these land men out to go and sign people up for gas leases for $25, $50, if you were lucky maybe $100 an acre. And they would tell them “it’s patriotic, it’s energy independence, it’s this great new technology, you won’t even know we’re here, we’ll be in and out.” And they told them, “you’ll be doing this wonderful thing for your community.” So all sorts of people signed, including some of the most outspoken activists now: Cornell professors, environmentalists, farmers who were just appalled when it came to light what fracking looked like.

People were like, “Can we get out of these leases? They lied to us. They told us this, and this is what we signed.” We looked into it, but all the leases say “It doesn’t matter what we told you, here’s what you’re giving away, and all promises that aren’t reflected in this document don’t count.” And it’s like, well, you signed it.

So when you start fighting these companies to keep them out of the towns, was that your way of getting around the leases?

Right, and also to protect the people who didn’t sign leases. Let’s say you own a house in upstate New York and it’s in a zoned residential area, and you go out and sign a lease with Wal-Mart allowing them to build a supercenter in your backyard. The fact that you signed that lease with Wal-Mart doesn’t mean Wal-Mart can go build that supercenter. If Wal-Mart paid you the lease money and didn’t check first that they could build in that area, good for you, bad for Wal-Mart. So this was the same sort of thing. Contracts are always subject to those kinds of rules.

How did you put that principle into action against the oil and gas industry?

The reason why people thought they couldn’t do anything was that there’s this statute that says that towns cannot regulate the oil and gas industry. And so everyone took that to mean that basically the oil and gas industry could come into your town, and they didn’t have to abide by any laws you had in the town at all. Of course, if you think about it, you’re like, how can that be? How does one industry get this tremendous exemption from everything? And so the question is, well, what’s a regulation of the industry? Where does that line end?

So we started looking at that, and laws in New York, and case decisions basically saying that that you can’t build a Wal-Mart in somebody’s residential neighborhood. That’s not regulating Wal-Mart, that’s regulating land use, and so that’s permissible. And so we thought, well, that should apply here. You should be able to say, even though we can’t say how deep you can drill the well, or what kind of fluids you can put down there, we can just say that’s not consistent with the land uses in our community.

Nobody believed that at the time, from big environmental groups to municipal lawyers to D.C. So we had to both convince people that there was merit to our approach; that this wasn’t just some hippy, ridiculous idea. And then, in the face of industry threats like, “We’re going to sue you, we’re going to take your house away,” we had to get them to pass the laws. Then we had to take it from one or two towns passing the laws, which in and of itself takes a lot of work, to getting 170, 180 towns to do it. So that just required a whole process of convincing people that were right. You know, PowerPoint presentation after PowerPoint presentation: “Here’s the law. Here’s what it means.” The very fastest you can pass a local law is four months, if you rush it. And it takes more like a year, sometimes two years to pass a land use law, because there’s so much process.

What kind of money was involved in putting all that together?

A typical lawyer would charge at least $15,000 to draft one of these laws. We never charged a town anything for this kind of work. The original work we mostly funded out of retirement savings — we just felt like we had to do this. And plus we felt like we hadn’t really been on the right side of things in the past and this was sort of like payback. Putting those corporate lawyer skills that are usually used in not the greatest of ways, for a really positive cause.

The very first meeting when we mentioned this idea, we thought we must be missing something. It turns out we’re not. Thirteen law professors just filed a brief in the court cases being appealed agreeing with our analysis. But at the time it was like, nobody agrees with us. We must be missing something. And so we were scared to death. It was like saying the emperor had no clothes. Were were looking around and saying, “I’m pretty sure he’s naked.”

But at the time, we were only 80 percent through the research, and we just mentioned the idea. People left that meeting and started petitioning on their own. We were like, “Oh my god. We’d really better be right.” It was just really empowering for people, because this was the first time they had been told, yes, there is something you can do. You don’t have to just watch this train wreck coming at you and brace for impact. You can get out of the way. You don’t have to put yourself through this. So the community response was so overwhelming and the activists were like, “we’ll work on getting you some funding, so you at least have gas money, because you’re driving 100,000 miles all over the state.” So it didn’t take as much money as if a big group had done this, that had a bunch of people and studied it. This was guerrilla law.

Still, it’s so time-consuming: Is there an advantage to this piecemeal strategy, other than the fact that it’s just more doable as opposed to, say, fighting for a moratorium for all of New York state?

The oil and gas industry has so much money in politics. It was FDR who said you can’t win an election without big oil, and you can’t govern once you’re elected. Which is exactly the case. You need them to get elected. They have so much money. They’re so influential in politics. We can’t go after them. So at the federal and state level, especially in New York, with a governor who has presidential ambitions, two lawyers from Ithaca aren’t going to win that, and probably no one is going to. The corporate money is just too influential.

But at the local level, you have your neighbors who are the people you’re electing. And you can actually talk to them. And your other neighbors are the people who also influence them, and it’s doable. Like writing a letter to Albany, where does that even go? Does anyone read it? I don’t think so. This was one person, one vote. Not $1 million, one politician.

The oil and gas companies do try to go out and buy elections at the local level. They’ll give big donations to the school, or other charities in the town. And they’ve had instances where they’re like, “Oh we said we were going to give you $15,000 for your music program, but now you passed this law? No, your kids can’t have clarinets.” So they do influence even at the local level. But a lot of their strong-arm tactics have gone over very poorly. Some towns are worried, they’re scared of getting sued. But we were surprised by the number of towns and townspeople that were like, “Are you kidding me? You think you can just come into my town and tell me you’re going to do whatever you want, wherever you want, whenever you want it, and I’m going to have no say? Who do you think you are?” So the local level is really the place where people can participate in democracy and take a stand.

The industry accuses us of NIMBYism. Well, what are you going to protect besides the places you love the most? And if everyone protected their backyards then we wouldn’t have this: You’re going to protect where you live, and if other people protect where they live, and other people protect where they live, then you’re really growing a movement.

Do you seek these towns out, or do they come to you?

We only work with towns that come to us. We have to be invited, by our own internal rule, because we don’t want to be accused of lobbying.

Do you hear people from these communities who are swayed by promises of economic benefits? Are you in communities where there are a lot of blue-collar workers who would be looking for the jobs?

So, yes. I mean, there are both workers that would like jobs, and our farmers, who can’t make a living, are being promised this road paved with gold and the like. And that’s difficult. But what industry will tell you is that if you did make regulations that would truly make this safe, if they had to comply with the environmental laws that apply with everyone else, they couldn’t make any money doing this. The reason why is the money they make comes out of the pockets of the people that are harmed, because they don’t have to comply with environmental laws. So it is less a creation of wealth than a transfer of wealth from poor people in communities, in not necessarily immediately apparent costs.

What’s somebody’s house worth when the water supply goes bad? In our country, in our system, it’s never been enough that you need money, to make it right to steal it from somebody else. And it’s intergenerational theft. It’s theft from the community. The public owns the air, the water. Those are common public resources, and the only way these people make money is by basically ruining these common assets for private gain. And so yes, there would be people that make money, there would be people that get jobs. The jobs are the riskiest, most dangerous jobs you can get. They’re effectively jobs that are like digging your own grave. And like, yeah, you got the paycheck. But you’re digging your own grave. Is that a job you want?

Is that something that’s hard to convince people of before it happens? Is there opposition from those people when you come into a town?

There are certainly towns that we don’t work with for that reason. And it’s very difficult. Human beings are fundamentally positive, optimistic, hopeful. Who wants to hear a negative story? Industry comes in and says, “You’re going to be rich beyond your wildest dreams, everything will be wonderful and great.” And then we come in and we’re like, “No, it’s really not going to be all that terrific.”

Let’s look at extractive communities, the places where the roads should be paved with gold. You look at Pennsylvania, you look at West Virginia. Those people did not make out from extraction. It’s called the resource curse. The places you extract everything from are left impoverished, ruined and destroyed. Where are the places you want to live? They’re literally green, that’s just like the way it is. So you want to live in a verdant, green, local economy, with organic agriculture and distributed, renewable energy. Locally sourced production. That’s what we try to convince people: “Look at these two pictures, don’t you really want this one?”

So are you going to keep working on a town-by-town basis, or do you have bigger plans in the works?

We started helping consult with lawyers and other groups in California, in Texas, across the country. The beauty of this was we could take it from one town to 180 towns in New York — we’d have to have it crafted for each state, and there are different rules, but this could happen across the country. Even in places where the laws aren’t necessarily as favorable to local control, it resonates with people. Who better to make decisions about what happens in our community? Should it be some business executive in Norway, or should it be the people who live in our town? Who gets to decide? In America, it’s supposed to be the people who get to decide. People feel disconnected from federal and state politics. You can get people involved at the local level. So we’d really like to try to spread that and get people involved in their local politics and use that as an entry point where you can begin to effect some change, despite the dysfunction at higher levels of government.

Are you worried about there being more industry blowback now that you’ve opened up about all this?

I’m sure that there is going to be. There are people who are going to be apoplectic. Local level industry people know who we are, and I’m sure this is going to cause them to be more upset. But we’re sort of at the point where we’re in front of the highest court in New York, the briefs have been filed, we’re confident that the court of appeals is going to do the right thing here. Even industry lawyers have said, they have to appeal — like, why wouldn’t you? — but they do not expect to win. We certainly don’t think they’re going to win either. So the personal attacks will not detract from the work.

Skagit County Suggests Swinomish Indian Tribal Community Dismisses Its [Water]Lawsuit

Sandra Spargo, Defending Water in the Skagit River Basin, Dec. 15, 2012

Please find below an article in the Skagit Valley Herald that is entitled, County suggests Swinomish dismiss its lawsuit. The Swinomish lawsuit (supported by the City of Anacortes without citizen input), if successful, could lead to all rural and agricultural landowners in the Skagit River Basin losing access to well water if they had drilled their well in 2001 or after, Ecology officials have said.

Moreover, if the Wash. State Supreme Court rules in favor of the Swinomish, Skagit River Basin owners of about 5,700 buildable lots–on which at least 400 homeowners have already built homes–could lose access to their well water for residential use.

The link of Skagit County’s letter of Dec. 14, 2012, to Chairman Brian Cladoosby and the Senate of the Swinomish Indian Tribal Community is located at Letter to Swinomish & Anacortes on Dec. 14, 2012.   The link contains the letter’s three supporting documents.

To understand the viewpoint of landowners/homeowners caught up in the contentious water issue over which they have no input, visit the Just Water Alliance website at http://justwateralliance.org.

Do the citizens of Anacortes want the City to support the Swinomish lawsuit against the the Dept. of Ecology that could result in at least 400 homeowners losing their well water for residential use, possibly their homes? For a history of Anacortes’ involvement with Swinomish lawsuits, see the legal section of the City of Anacortes website at http://www.cityofanacortes.org/Legal/WaterRightsSwinomish/index.asp.

My opinion is that the City of Anacortes’ nonsupport of a compromise regarding the water issue while it promotes the sale of five million gallons of water per day for Tethys Enterprises’ proposed bottling plant makes Anacortes a lousy neighbor. Tethys would be the largest bottling plant in North America.

County suggests Swinomish dismiss its lawsuit

By Kate Martin | Posted: Saturday, December 15, 2012 1:00 am

MOUNT VERNON — Skagit County commissioners say they will rejoin a 1996 water agreement if the Swinomish Indian Tribal Community drops its lawsuit against the state Department of Ecology.

The tribe’s lawsuit is currently being reviewed by the state Supreme Court. If the tribe is successful, it could lead to all rural and agricultural landowners in the Skagit River basin losing access to well water if they drilled their well in 2001 or after, Ecology officials have said.

The letter, sent Friday, is in response to those sent last week by Anacortes and the Swinomish. Those letters in turn were in response to a November letter by commissioners, which announced the county had left the 1996 Memorandum of Agreement, which outlined a historic water agreement in the valley.

Commissioners also asserted that they had left the agreement because the Swinomish and Anacortes broke that agreement by suing Ecology to invalidate a 2006 state rule amendment that allows more water for rural and agricultural users. The original rule amendment, from 2001, provided no new water at all for rural landowners or for agricultural uses, the county states.

The commissioners’ letter outlined a path to where the county could rejoin the agreement: “You can remedy your ongoing breach by dismissing your pending lawsuit. Until that happens, Skagit County is not a party to the 1996 MOA, and has no further obligations under the 1996 MOA.”

Anacortes Mayor Dean Maxwell said he had not had a chance to read the letter, which was sent at 2 p.m. Commissioners Ken Dahlstedt and Sharon Dillon could not immediately be reached for comment.

Larry Wasserman, environmental services director for the tribe, had little to say about the commissioners’ response.

“The tribe doesn’t believe it is productive to continue to have these debates in the newspaper,” Wasserman said. “Our previous letter speaks for itself, as do the facts on our website. People can look there to find out what the real history has been.”

The commissioners’ letter also says the tribe and city’s ongoing lawsuit “completely undermines the stated purpose of the 1996 MOA” by seeking to eliminate all water for rural landowners and farmers.

The city and tribe both said in their letters that the county was using the same legal process for challenging Ecology’s rule when it sued the agency in 2003 as the tribe used to challenge the rule amendment in 2008.

Skagit County Commissioner Ron Wesen said it’s not the same.

Wesen said the 2003 disagreement the county had with Ecology involved the 2001 instream flow rule because that rule did not include any water for rural agriculture or residences requiring a well.

“What the tribe and Anacortes are saying, ‘We don’t agree with Ecology’s authority to make this change.’ If they don’t have authority to do that, then all exempt wells since 2001” are gone, Wesen said.

The Swinomish contend in their lawsuit that Ecology is using an overly broad definition of a narrowly defined exception to provide water in exceptional circumstances. The Swinomish lost an earlier round in the Thurston County Superior Court in 2010. The state Supreme Court’s ruling could be months from now.

“It’s complicated, but we’ll find out when the Supreme Court makes its ruling who is right,” Wesen said.

Wesen said the MOA and the instream flow rule don’t take into account the fact that water use changes over time. “To say this is the rule we have for 50 years and have no flexibility, it doesn’t make any sense to me.”

Meet the 13-Year-Old Taking On Bottled Water

AlterNet/By Maude Barlow, published Sept. 6, 2012

We should be encouraging the youth in our society to do exactly what Robyn is doing — engaging in local politics, acting to protect the environment and questioning the world around her.
In the last year, municipalities across Ontario and the rest of the country have begun taking a much-needed stand to protect local water sources. Since  World Water Day  in 2011, nine municipalities across Canada have become Blue Communities with many well on their way.

Blue Communities  are municipalities that adopt a water commons framework by: banning the sale of bottled water in public facilities and at municipal events, recognizing water as a human right, and promoting publicly financed, owned and operated water and waste-water services.

The success of the Blue Communities project in Ontario can be mainly attributed to Robyn Hamlyn who has met with 18 mayors and councillors. She talks about the environmental impacts of bottled water, the preposterous amount of profit bottled water companies make off communities’ lakes and streams and the stricter standards with which tap water is regulated. People who hear Hamlyn speak are captivated by her charm, passion and foresight to think long term about our water sources. And the incredible part of this success story is that Hamlyn is only  13 years old .

Her success has not only caught the attention of mayors, city councillors, environmentalists and media but it has also caught the attention of industry and organizations that believe water should be sold for profit. Hamlyn’s determination and effectiveness has provoked responses from Nestlé and Enviroment Probe, an organization that promotes the sale of water as a commodity.

John Challinor, Director of Corporate Affairs for Nestlé, has written letters to local newspapers saying there are other initiatives that the 13-year-old and others “can and should focus on to help preserve, protect and strengthen our water systems that are more effective than targeting bottled water.” More recently, Essie Solomon, an intern for  Environment Probe , wrote an article in the  Financial Post , chiding municipalities for taking “their advice from a 13-year-old.” It was shocking to read Environment Probe’s attack on Hamlyn who has been volunteering her free time to meet with municipal councils across Ontario to talk about the impact of bottled water on current water sources, climate change and social justice.

We should be encouraging the youth in our society to do exactly what Robyn is doing — engaging in local politics, acting to protect the environment and questioning the world around her. Solomon, whose article is condescendingly titled ” Don’t bottle 13-year-old’s water wisdom ,” would do well to pay attention to Hamlyn’s work rather than toe the line of an organization that promotes the sale of water for profit.

It’s also insulting to mayors and councillors to imply they do not examine critically the information presented to them. Not only is Hamlyn dispelling important myths about bottled water but she is also raising important issues that Canada is facing.

We believe municipal governments and other public bodies should not spend public funds providing bottled water at meetings or events, when a cheaper and more sustainable public alternative is readily available on tap. It simply doesn’t make financial or environmental sense.

Municipalities are at a crossroads and face pressing infrastructure needs in the wake of budget cuts and conditional funding from the Harper government. The Harper government is targeting water and wastewater services for privatization. PPP Canada explicitly promotes privatization of public services by only allocating the $1.2 billion under the P3 Canada Fund to municipalities that let corporations deliver water and wastewater, transportation and communications services on a for-profit basis.

The Harper government has shut down public debate on many critical water issues and amended environmental legislation that will reverberate for generations to come. So we are heartened to see municipalities take on critical water issues and provide forums for much needed debate and it is in them that we place our hope.

The Blue Communities Project is a joint initiative of the Council of Canadians and the Canadian Union of Public Employees (CUPE). This project builds on a decade of Water Watch work in coalition with many other groups to protect public water services and challenge the bottled water industry.  Click here  to learn more about the Blue Communities Project.

Banning Corporate Personhood: How Communities Are Taking the Law Back from Big Companies

Ben Price of the Community Environmental Legal Defense Fund explains how communities can fight corporate power with a new legal weapon.
Defending Water comment:  Well, not entirely new.  Shapleigh and Newfield have used this weapon in ordinances they passed in 2009 to keep Nestle from taking their water. If frackers come to Maine wanting to extract natural gas from shale rock by fracturing rock using water laced with toxic chemicals, we need to be ready!  Ben, speaking at a community forum in NYS,  tells it like it is, so read on:

Town of Wales, New York, Adopts Community Rights Ordinance That Bans "Fracking"

Defending Water Congratulates Wales, New York, for protecting their community and their water from the destructive gas drilling practice known as “fracking” which injects water laced with toxic chemicals into the ground to release natural gas from shale rock.

“This local law embodies the will of our residents to protect our natural resources from destruction, so our children and grandchildren can have the quality of life we enjoy.” – Councilmember Mike Simon
The Ordinance includes a local “bill of rights” that asserts legal protections for the right to water; the rights of natural communities; the right to local self-government, and the right of the people to enforce and protect these rights through their municipal government.  [link to full story below] Continue reading