On Thursday, May 2, New York State's Appellate Court upheld the right of two townships - the Tompkins County town of Dryden and the Otsego County town of Middlefield - to use their zoning laws to ban gas drilling. This includes high-volume hydraulic fracturing, during which millions of gallons of sand-and-chemical-laced water are propelled into deep shale rock to force out the methane it contains. Last week's decision defeated corporate challenges to the state's constitutional home rule provision, under which local ordinances trump state laws.
If you haven't been following New York State's astonishing grassroots battle against fracking, the foregoing may seem humdrum. But in fact it represents a victory wrenched by unknown grassroots activists from giants of the fossil-fuel industry. While the corporations defeated in last week's judgment are only two in number, the entire industry has had its eyes on New York State, which has become the epicenter of an international struggle against unconventional gas. (By "unconventional gas" I mean not only the drilling method, but the vast infrastructure that is metastasizing from hundreds of thousands of fracking wells into America's rural countrysides.)
For decades, the mightiest industries in corporate history have lusted for the methane in the Marcellus Shale, the huge rocky sprawl that ripples far beneath New York and three contiguous East Coast states. Unlike Pennsylvania, where drilling began as early as 2005, New York passed a moratorium on fracking in 2009 (it holds to date). Under that umbrella, tiny groups of organizers in Otsego County, about 80 miles southeast of Syracuse on Otsego Lake, and Dryden, 100 miles west of Otsego near Ithaca, began eyeing zoning as a way of banning gas drilling. Even if the moratorium were lifted, bans on drilling within townships could halt the industry at the grass roots.
New York has a history of legendary movements, from abolition and women's suffrage in the 19th century to Occupy in the twenty-first. Its environmental campaigns have included the watershed Storm King Mountain case, in which activists defeated Con Edison's plan to carve a giant facility into the face of that Hudson River landmark. The decision established the right of anyone to litigate on behalf of the environment.
Today, that activist legacy is evident in the state's grassroots anti-fracking insurgency, spearheaded by the zoning drives. New York's fractivists defy all distinctions of political affiliation and social background. Everyone, after all, needs clean air and water - Republicans, Democrats, Tea Partiers; farmers and doctors, lawyers, nurses, physicists, accountants and teachers. "I have never seen [an environmental movement] spread with such wildfire as this," says Robert Boyle, a legendary environmental activist and journalist who was central in the Storm King case and founded Riverkeeper, the prototype for all later river-guardian organizations. "It took me 13 or 14 years to get the first Riverkeeper going. Fracking isn't like that. It's like lighting a train of powder."
Middlefield resident Ron Bishop, a biochemist who teaches at SUNY/Oneonta, recalls that as early as 2008, he spoke with Middlefield's town board members about the dangers of the unconventional gas industry. Scientists were carrying on similar conversations with town officials and citizens in Dryden near Ithaca. But in both places, as well as in the town of Otsego, a Middlefield twin in its relation to Lake Otsego (Middlefield lies to the east of the lake, Otsego to the west), the powder train was ignited by citizens like Kelly Branigan, a Middlefield nurse, Julie Huntsman, a Cooperstown veterinarian, and Marie McCrae, a Dryden farmer.
The Powder Ignites
In September 2010, on a quiet rural road in the town of Middlefield, several residents spotted trucks with out-of-state license plates preparing to do seismic testing. A house-shaking operation that determines whether the regions deep beneath the surface will yield methane, seismic testing is the first step towards drilling. The truck activity in Middlefield was an invasion: Gastem, the Quebec-based gas and oil exploration corporation that was conducting the tests, hadn't asked the town's permission beforehand.
Alarmed, the neighbors called an emergency meeting in a home basement. Kelly Branigan attended. Her husband, a nurse-anesthesiologist, had been working in a hospital just south of the New York border in northeastern Pennsylvania, ground zero for drilling. He stayed there during the week, coming home each weekend to Middlefield's fresh air and quiet. He told Kelly about air and water contamination, truck traffic, accidents, health impacts, communities ripped apart. "I refuse to live like that," he said. "We need to do what we can to stop it. If it comes to Middlefield, we're gone."
"The time to fight had arrived," recalls Branigan of the seismic incident. Out of the 30 to 40 citizens who attended the basement meeting, a smaller group began crafting strategy. They circulated a petition that informed the town board about their concerns and asked its members to tell Gastem to suspend the testing. Armed with an overwhelmingly affirmative citizen response, the neighbors approached the board in person. "We said we thought gas companies were preparing to drill exploratory wells. We told them, 'We don't think it's allowed,'" recalled Branigan last week.
A group of some 12 people, including Branigan, writer Peg Leon, stay-at-home mother Sarah White, and technical writer Kim Jastremski, then formed a volunteer organization, Middlefield Neighbors. It would shepherd the town's citizens to vote for a ban June 14, 2011, which made a scanty nine-month gestational time from campaign start to finish. Preparations for the ban included educational forums, town board and public hearings, and opinion polls. Among forum speakers were Louis W. Allstadt, a retired Mobil Oil executive-turned-skeptic against hydraulic fracturing, and a young attorney named Michelle Kennedy, one of the first in New York to consider using zoning to keep out unconventional gas operations. In addition, Middlefield Neighbors and the board hired a planning organization, which issued a report showing the detrimental effects gas drilling could have on the rural community.
In town board meetings and public hearings, lawyers for the gas industry and the state's industry-allied Joint Landowners' Coalition of New York threatened to sue if the town acted against hydraulic fracturing. Instead of backing off, Middlefield Neighbors gathered thousands of names from voter registration and tax records and conducted two polls, one by phone, the other by mail. The mailing included a post card with boxes about fracking for the recipients to check ("Opposed," "In favor," "Undecided.") "We had a 75 percent percent response rate," recalls Branigan. "84 percent were opposed, 8 percent undecided, 8 percent in favor. So that gave a strong mandate to the board."
Meanwhile, on the other side of Lake Otsego in Cooperstown (think Baseball Hall of Fame and James Fenimore Cooper's Leatherstocking Tales), Julie Huntsman had been working on her own against the industry. By early 2010, she had read a few articles about hydraulic fracturing. "Anybody with a medical education, an education in biology or chemistry, would be appalled by [it]," she reminisced as she savored the appellate court victory last week. "You cannot inject this stuff under pressure, deep in the earth, and expect not to have consequences." Huntsman's hunch that the industry would poison earth, air and water, sickening animals like the ones she cared for, as well as for their owners, has proven all too true.
What turned Huntsman into an activist was watching Josh Fox's Gasland in June 2010 with two friends in her living room. "The three of us sat on the couch with our jaws slack. "Holy shit!" Huntsman recalls one of the friends exclaiming. "This is insane! It's unconstitutional! How can they have all these exemptions?" (A 2005 Energy Act passed under the auspices of former Halliburton CEO, then-Vice President Dick Cheney, exempts hydraulic fracturing from the Clean Air, Clean Water, and Clean Drinking Water Acts and other environmental laws.)
"I basically had a fire lit under my tail and I just went for it," said Huntsman as she sipped a margarita last week, celebrating the appellate court victory. The first step in "going for it" was a mass mailing to citizens in Otsego's Fly Creek, Huntsman's neighborhood just west of Cooperstown. The mailing, which cost $600 (she raised it among neighbors), included a letter of information about the industry and a pledge. Recipients were asked to agree not to lease their land to gas companies. Total land area pledged amounted to 3,000 acres.
On a hot night the next month, Huntsman attended a meeting about hydrofracking in Cooperstown's courthouse. Debating hell had broken loose between fracking advocates and opponents, when a reedy Texan reduced the crowd to silence. "My husband and I said, 'Who is this guy? Eight feet tall, and he knows what he's talking about.'" In a recent email, retired oil investor and Atlantic Richfield Planning Manager James "Chip" Northrup quipped: "Julie exaggerates. Am closer to 7' tall. 6' 6" actually. But look taller because I forget to inhale sometimes."
Huntsman invited Northrup and Allstadt, the retired Mobil executive, to speak in the fellowship hall of her church, Fly Creek United Methodist. She posted a flier on her local general store's bulletin board, others on about 100 mailboxes. Seventy-five people attended the forum, which took place in September 2010. The two former oil industry insiders, she says, "scared the bejesus out of everyone."
By January 2011, Huntsman had learned about Middlefield Neighbors. On a very snowy night that month, in a school auditorium near Middlefield, the Neighbors held a meeting where Allstadt and lawyer Michelle Kennedy spoke. Huntsman was there. She and Branigan call the turnout of some 150 people "astonishing." It was one of the coldest nights of the year.
An Ithaca-based lawyer couple, Helen and David Slottje, finally clinched the case for using zoning laws to ban fracking. While the Middlefield, Otsego and Dryden campaigns were underway, the Slottjes had been working to reinterpret New York's constitutionally guaranteed home rule. Home rule should have unquestionably allowed town laws to trump those of the state, but in 1981, New York's Department of Environmental Conservation (DEC) Division of Mineral Resources exempted gas corporations from local restrictions. Helen Slottje, who works pro bono for the movement, says she spent "thousands of hours" on research, coming up finally with a simple interpretation: the state regulates the gas industry; towns and villages can't regulate it, but what they can do is keep its operations off their land through the use of zoning ordinances.
In early spring after the Middlefield forum, Huntsman marshaled 25 volunteers to do a nine-day phone survey of the town's registered voters. The citizen-pollsters reached a little over half the 2,500 people they called. 81.5 percent opposed fracking; 4.5 percent favored it; 14 percent were undecided.
On May 11, 2011, in a 4 to 1 board vote, Otsego became New York's first town to pass a zoning ban. Middlefield followed on June 14. (The petition on which Otsego's board decision was based was crafted by Northrup and circulated by Huntsman among Republicans and Democrats alike.) In Dryden, where farmer Marie McCrae and other citizens had been organizing similarly (they called their organization Dryden Resource Awareness Coalition), the town board voted a ban unanimously in August 2011. (Dryden's story has been more widely reported than those of Middlefield or Otsego. See one of many accounts here and a succinct history of all three bans here),
There followed a veritable ban cascade that continues across the state. According to the FracTracker Alliance, there are currently 55 municipal bans against fracking in New York state and 105 moratoriums. These have triggered a groundswell of similar actions in communities nationwide.
True to the words of its lawyer during Middlefield's town meetings, Denver-based Anschutz Exploration Corporation, owned by Phillip Anshutz (net worth: $7.5 billion), sued Dryden in September, 2011. A Cooperstown-based dairy farmer sued Middlefield at the same time. (Middletown Neighbors had raised all the money needed for contesting the plaintiffs.) In February 2012, New York state judges upheld the bans. The dairy farmer appealed the lower court's decision, and a Norwegian-based corporation, Norse Energy, decided to jump into Dryden, where Anschutz had failed. It was these two suits that finally prompted last week's appellate court decision.
According to Helen Slottje, the consideration of any further appeal would require permission from the court. "If the appeal were granted," she says, "it would be more likely for the highest court in New York to uphold the well-reasoned decisions that support home rule."
Last week, Kelly Branigan underscored that the ban movement has nothing to do with large environmental NGOs. "The industry talks about NGOs like the Sierra Club and says they are bullying town boards and taking over. That's just so laughable. They don't recognize that it's just ordinary people doing extraordinary things." On Earth Day last month, prominent author and biologist Sandra Steingraber addressed top environmental NGO leaders in a letter from Chemung County jail, where she had recently been confined for nonviolent civil disobedience against Inergy Corporation. (Inergy is seeking to make Seneca Lake the Northeast's biggest gas-storage hub.) She accused the Environmental Defense Fund's Fred Krupp, The Natural Resource Defense Council's (NRDC) Frances Beinecke, the Sierra Club's Michael Brune, Philip Johnson of the Heinz Endowment and others of "[joining] hands with industry to draft model regulations for fracking." Those models, she wrote, aren't as strict as the woefully inadequate rules drafted by New York State's DEC. (Documents obtained through New York's Freedom of Information Law (FOIL) indicate that, in mid-August 2011, six weeks before the DEC made its draft public, the agency shared detailed summaries of it with gas corporation representatives, giving the industry a chance to influence the final document before it went public.)
"In separate conversations this year with both Frances Beineke of NRDC and Michael Brune of Sierra Club," writes Steingraber, "I was told that a nation-wide ban on fracking - or even moratoria in all states - would be 'unrealistic' for political reasons. What seems to me less realistic - politically - is to imagine that the oil and gas industry ... would willfully follow any regulations or voluntary standards of any kind."
Bruce Ferguson - whose organization, Catskill Citizens for Safe Energy, together with Earthjustice issued the FOIL request that last year forced the DEC to disclose its correspondence with gas industry representatives - last week applauded the victory at the grass roots. "For five years, Albany has proved itself incapable of addressing fracking in a meaningful way," he said. "In town after town, groups of citizens have organized to protect their communities. These small, underfunded, grassroots organizations may be close to defeating some of the most powerful corporations in the world."
The author drew her title for this article from one given by TomDispatch's editors to an earlier essay in TD's pages.