Two articles published in the December 7, 2014 edition of the Press and Sun Bulletin suggest that high volume hydraulic fracturing of natural gas wells (aka “fracking”) may soon be a reality for the Southern Tier, and that municipalities are not prepared to take advantage of the opportunity. Yes, you heard me right, take advantage of the opportunity. I’m not making that statement because I am pro-fracking, but because those who are may find that the recent court decision that allowed the Village of Dryden to ban fracking within its borders has interpreted New York’s Oil and Gas Act in such a way that municipalities that have zoning must explicitly allow fracking within their zoning ordinances if they want it to occur, not explicitly prohibit it if they do not want it to occur. This language creates an important distinction between New York and our neighbor to the south Pennsylvania, where municipalities where the default interpretation is that fracking is permitted unless explicitly prohibited within certain zones.
According to the Press and Sun article, “Fracking in N.Y. would face local zoning hurdles”, at present no Southern Tier zoning laws cover fracking although the towns of Conklin and Chenango are in the process of revising their zoning ordinances.
What can we learn from the Pennsylvania experience? Despite the difference in the default interpretation of state Oil and Gas laws, there is much we can learn from how PA municipalities have dealt with fracking. For the most part, these lessons will have to be learned not from our closest neighbors in the Northern Tier of PA, but from the southwest region of the state. Because the Northern Tier municipalities do not have zoning, they have no ability to restrict drilling within their borders. However, many of the municipalities in Washington and Greene Counties do have zoning ordinances and have written specific drilling ordinances to restrict where drilling can occur. Additionally, some of these municipalities have specified not only where drilling is a “permitted use” but zones where drilling is a “conditional use” or can be done under “special exception”.
Interviews that I conducted with local government officials revealed significant variation in the ways that drilling has been managed. There are three factors that underlie these varying responses: 1) expectations of what local government will or will not do, 2) whether or not a municipality has zoning, and 3) equity issues associated with the costs and benefits of drilling. The first and second factors are very closely intertwined. In municipalities that do not have zoning there is a very clear expectation that local government will not interfere in private property decisions. In municipalities with zoning, local government expectations include protecting the health and welfare of its citizens, being a source of information about drilling, interceding with gas companies when there are problems, promoting responsible drilling, and monitoring drilling activity. The expectation that extended to municipalities with and without zoning was that the local government would take care of the roads.
With respect to the third factor, municipalities were more likely to create a drilling ordinance when the costs of drilling within the community were likely to extend to those who were not going to receive the economic benefits of drilling. The costs or problems associated with drilling were described fairly uniformly and seemed to have little bearing on whether a municipality decided to restrict drilling. The most commonly mentioned problems were truck traffic, road damage, dust, and noise. Much less frequently mentioned were issues related to water and pollution (air or water), issues that dominate the discussion in New York.
There were other things that government officials from municipalities that have experience with drilling agreed upon. One was that drilling has been a net positive for their communities. Second was that there was a tremendous learning curve in how to deal with drilling in the five to seven years since drilling began.
New York is in a fortunate position in many respects. Local municipalities that do not want to experience drilling have the option of banning it outright (this is not an option in Pennsylvania). Those that want to take advantage of the economic opportunities have the time to decide where and how drilling will take place. Finally, New York municipalities should not have to learn by trial and error as Pennsylvania municipalities did; rather they can learn from the Pennsylvania experience.
For more information about my research on local government capacity and natural gas drilling in Pennsylvania, feel free to contact me at email@example.com.