Local governments can regulate land use –the anti-fracking activists who just won the world’s largest environmental prize

There is something we can do about that proposed fracked methane pipeline.

Lindsay Abrams wrote for Salon today, The real secret to beating the Koch brothers: How our broken political system can still be won: A duo of activists has quietly bested the energy lobby, helping ban fracking in 172 towns. Here’s how they did it,

You 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.

OK, what did they actually do?

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.

There is something you can do.

Even FERC wrote in a 2006 hydroelectric dam decision:

“Federal pre-emption does not necessarily mean that FERC will not elect to require PacifiCorp to comply with those of the counties’ requirements that FERC concludes will not interfere with the company’s ability to carry out FERC’s orders. It only establishes that it is within FERC’s sole discretion to determine the extent to which such compliance will be required. We prefer for our licensees to be good citizens of the communities in which projects are located, and thus to comply with state and local requirements where possible. However, to the extent that state or local regulations make compliance with our order impossible or unduly difficult, we will conclude that such regulations are pre-empted.”

And even for FERC to determine that it has sole discretion it first has to determine there is some public benefit, which hasn’t yet been shown for the Sabal Trail fracked methane pipeline.

And maybe there’s another reason FERC doesn’t always chose to assert its “sole discretion”:

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.”

Maybe Emperor FERC has no clothes.

Local governments could get on with passing local ordinances and find out.


2 thoughts on “Local governments can regulate land use –the anti-fracking activists who just won the world’s largest environmental prize

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