{"id":8559,"date":"2014-04-29T17:52:53","date_gmt":"2014-04-29T21:52:53","guid":{"rendered":"http:\/\/www.l-a-k-e.org\/blog\/?p=8559"},"modified":"2014-04-29T17:53:36","modified_gmt":"2014-04-29T21:53:36","slug":"local-governments-can-regulate-land-use-the-anti-fracking-activists-who-just-won-the-worlds-largest-environmental-prize","status":"publish","type":"post","link":"http:\/\/www.l-a-k-e.org\/blog\/2014\/04\/local-governments-can-regulate-land-use-the-anti-fracking-activists-who-just-won-the-worlds-largest-environmental-prize.html","title":{"rendered":"Local governments can regulate land use –the anti-fracking activists who just won the world’s largest environmental prize"},"content":{"rendered":"

\r\nThere is something we can do about that proposed fracked methane pipeline.\r\n

\r\nLindsay Abrams wrote for Salon today,\r\n\r\nThe real secret to beating the Koch brothers: How our broken political system can still be won:\r\nA duo of activists has quietly bested the energy lobby, helping ban fracking in 172 towns. Here’s how they did it<\/a>,\r\n

\r\n

\r\n\r\n<\/a>\r\nYou probably haven\u2019t heard of Helen Slottje, or, for that matter, of her\r\nhusband, David. But in the past few years, the former corporate lawyers\r\nhave become arguably two of the most powerful opponents of fracking in New\r\nYork \u2014 not to mention the most successful. As the (sort of) public face\r\nof the duo\u2019s efforts, Helen Slottje on Monday was honored with the \r\nGoldman Prize<\/a>, the world\u2019s largest environmental prize.\r\n<\/blockquote>\r\n

\r\nOK, what did they actually do?\r\n

\r\n

\r\nThe reason why people thought they couldn’t do anything was that\r\nthere’s this statute that says that towns cannot regulate the oil\r\nand gas industry. And so everyone took that to mean that basically\r\nthe oil and gas industry could come into your town, and they didn’t\r\nhave to abide by any laws you had in the town at all. Of course, if\r\nyou think about it, you’re like, how can that be? How does one\r\nindustry get this tremendous exemption from everything? And so the\r\nquestion is, well, what’s a regulation of the industry? Where does\r\nthat line end?\r\n<\/p>\r\n

\r\nSo we started looking at that, and laws in New York, and case\r\ndecisions basically saying that that you can’t build a Wal-Mart in\r\nsomebody’s residential neighborhood. That’s not regulating Wal-Mart,\r\nthat’s regulating land use, and so that’s permissible. And so we\r\nthought, well, that should apply here. You should be able to say,\r\neven though we can’t say how deep you can drill the well, or what\r\nkind of fluids you can put down there, we can just say that’s not\r\nconsistent with the land uses in our community.\r\n<\/p>\r\n

\r\nNobody believed that at the time, from big environmental groups to\r\nmunicipal lawyers to D.C. So we had to both convince people that\r\nthere was merit to our approach; that this wasn’t just some hippy,\r\nridiculous idea. And then, in the face of industry threats like,\r\n“We’re going to sue you, we’re going to take your house\r\naway,” we had to get them to pass the laws. Then we had to\r\ntake it from one or two towns passing the laws, which in and of\r\nitself takes a lot of work, to getting 170, 180 towns to do it. So\r\nthat just required a whole process of convincing people that were\r\nright. You know, PowerPoint presentation after PowerPoint\r\npresentation: “Here’s the law. Here’s what it means.”\r\nThe very fastest you can pass a local law is four months, if you\r\nrush it. And it takes more like a year, sometimes two years to pass\r\na land use law, because there’s so much process.\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nThere is something you can do.\r\n

\r\nEven FERC wrote in\r\na 2006 hydroelectric dam decision<\/a>:\r\n

\r\n

\r\n“Federal pre-emption does not necessarily mean that FERC will\r\nnot elect to require PacifiCorp to comply with those of the\r\ncounties’ requirements that FERC concludes will not interfere with\r\nthe company’s ability to carry out FERC’s orders. It only\r\nestablishes that it is within FERC’s sole discretion to determine\r\nthe extent to which such compliance will be required. We prefer for\r\nour licensees to be good citizens of the communities in which\r\nprojects are located, and thus to comply with state and local\r\nrequirements where possible. However, to the extent that state or\r\nlocal regulations make compliance with our order impossible or\r\nunduly difficult, we will conclude that such regulations are\r\npre-empted.”\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nAnd even for FERC to determine that it has sole discretion\r\nit first has to determine there is some public benefit,\r\nwhich hasn’t yet been shown for the Sabal Trail fracked methane pipeline.\r\n

\r\nAnd maybe there’s another reason FERC doesn’t always chose\r\nto assert its “sole discretion”:\r\n

\r\n

\r\nThe very first meeting when we mentioned this idea, we thought we\r\nmust be missing something. It turns out we’re not. Thirteen law\r\nprofessors just filed a brief in the court cases being appealed\r\nagreeing with our analysis. But at the time it was like, nobody\r\nagrees with us. We must be missing something. And so we were scared\r\nto death. It was like saying the emperor had no clothes. Were were\r\nlooking around and saying, “I’m pretty sure he’s naked.”\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nMaybe Emperor FERC has no clothes.\r\n

\r\nLocal governments could get on with passing local ordinances and find out.\r\n

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