A Setback for Frackers

This seems like very good news:

New York’s highest court has upheld the bans on natural gas drilling passed by two small Upstate towns.

It is a major decision for the future of hydrofracking in New York state, where the drilling process has been on hold for more than five years. The decision allows towns to forbid fracking and other forms of gas drilling within their borders. The state Department of Environmental Conservation is still deciding whether to allow hydrofracking in New York.

“Today the court stood with the people of Dryden and the people of New York to protect their right to self determination. It is clear that people, not corporations, have the right to decide how their community develops,” said Dryden Deputy Supervisor Jason Leifer in a prepared statement.

The towns of Middlefield and Dryden had been taken to court over bans their town boards had instituted. Drilling companies argued that only the state could regulate gas drilling; the towns argued that under their “home rule authority” granted by the state they had rights to control land use.

Trial judges, intermediate appeals courts and now the state’s highest court all agreed with the towns.

“The towns appropriately acted within their home rule authority in adopting the challenged zoning laws,” the court of appeals said today. “The zoning laws of Dryden and Middlefield are therefore valid.”

Why shouldn’t a community be able to decide whether outside energy interests can poison their land or not?






64 replies
  1. 1
    Baud says:

    Why shouldn’t a community be able to decide whether outside energy interests can poison their land or not?

    Religious freedom.

  2. 2
    efgoldman says:

    Yup. Good news.
    Until the frackers take it to Federal court.
    The district court will find for New York.
    The appeals court will find for New York.
    Ah, but the Supremes….
    Somehow, all the previous blather about “state’s rights” will be swept under the robes.

  3. 3
    Violet says:

    Why shouldn’t a community be able to decide whether outside energy interests can poison their land or not?

    Only God can decide such things. And God loves fracking. Duh.

    Also, too:

    Meanwhile, everywhere you looked, fights were breaking out between cities in need of water and the rural counties that had it. That water – the last true stockpiles in the state – wasn’t sitting around in lakes and streams, though. It was far underground, beneath ranches and farms, in nine vast, fragile reserves called aquifers. One of them, the Carrizo-Wilcox, had the very bad luck to flow under Bastrop County, a pipeline’s distance from Austin, San Antonio, and the thirsty suburbs along the booming tech corridor I-35. For the past three years, it’s been under siege from third-party players with grand designs, speculators who have signed leases with Bastrop landowners to buy up the water under their soil and sell it, for astronomical profit, to those wealthy cities. (In other states, groundwater is a public utility regulated like rivers and streams; only Texas has no laws barring private investors from buying and selling it as they choose.) A rural board has fought them off on behalf of Bastrop County, whose populace wouldn’t fill the Austin stadium where the University of Texas plays football. Gnashing their teeth, the speculators sued, saying their God-given right to sell someone else’s water has been violated by the board. That case is headed to district court this fall, and every eye in Texas will be watching. If the speculators prevail – prove they’re entitled to all the water they’ve paid for, even at the expense of Bastrop’s residents – there will be a gold-rush run on counties with ample water and sparse populations to protect it. And then it won’t be rice farmers and oystermen going broke, it’ll be people in cities paying ransom rates to shower, and rural families waking up to dry wells and faucets as the aquifers they drink from drain and die.

    h/t Morzer

  4. 4
    scav says:

    Because all that lovely fuel is in a dark mysterious space under the surface and the corporate persons have a deeply held religious belief it is theirs and must get emerge into the world, damn the rights or opinions of anyone else (heh) involved.

  5. 5
    rikyrah says:

    Oh these silly towns, deciding for themselves to not be poisoned.

  6. 6
    MikeJ says:

    The courts have a way to stop a legitimate fracking.

  7. 7
    Patrick says:

    Yes, but the activist USSC will overrule because a corporation is a person or religious freedom or some other made up reason to fit their made up world they seem to live in.

  8. 8
    billb says:

    it is amazing that rich f#ckers who are allegedly sooo smart would try to rape the planet right in front of us. If the pasty frogs can get up the pitchforks and guiloteens you can be well sure that we can find some Justice for ol fat Tony and his bitch clarry thomas.

  9. 9
    SuperHrefna says:

    @Violet: Yes, I read that whole article earlier this evening and I was so glad Morzer linked it even though it is a horrifying read. I really don’t know what these people think we are going to do for water in the future. OK, some of them may be some kind of Armageddon-nuts but they can’t all be. There will be a future and we are going to need potable water. It is absolutely essential for life. And there they are, destroying our supply. And even the ones that accept there is a problem seem to be culturally unable to do anything but pray about it.

    Anyone who hasn’t seen Vice News’ recent report on the Southwestern drought really ought to. We are so fucked. http://youtu.be/O2uGEokWNOA

  10. 10
    max says:

    Why shouldn’t a community be able to decide whether outside energy interests can poison their land or not?

    Communism!

    No, uh, wait…

    max
    [‘…BENGHAZI!’]

  11. 11

    @Violet: Texas would sell all of their oxygen if they could figure out how.

  12. 12
    Walker says:

    As someone who literally lives on the border of Dryden, and whose property is the runoff/wetlands for the surrounding area:

    HELL YEAH.

  13. 13
    Chickamin Slam says:

    @Baud:

    You, Patrick, and Violet beat me to it.

    Clearly we can see that Comrade Cole has silly notions, like clean water being important. What is really important is that corporate persons have the liberty and freedom to pollute religiously.

  14. 14
    burnspbesq says:

    @Patrick:

    Yes, but the activist USSC will overrule because a corporation is a person or religious freedom or some other made up reason to fit their made up world they seem to live in.

    Not bloody likely. The zoning power exercised by the two municipalities is rooted in the home rule powers granted under Article IX of the New York Constitution. You would know that if you had bothered to read the opinion before commenting.

    Finding Federal jurisdiction is a stretch that not even Elastic Tony Scalia is going to be able to manage.

  15. 15
    burnspbesq says:

    @Walker:

    HELL YEAH.

    Indeed. You had a good day today.

  16. 16
  17. 17
    Omnes Omnibus (the first of his name) says:

    @burnspbesq: On a day like today, after two shitty decisions by the USSC, people are justifiably angry and not really interested in detailed legal reasoning.

  18. 18
    Patrick says:

    @Omnes Omnibus (the first of his name):

    Thank you. You responded much better than I would have.

  19. 19
    WaterGirl says:

    @Omnes Omnibus (the first of his name): You’ve got that right.

  20. 20
    Roger Moore says:

    @Omnes Omnibus (the first of his name):

    people are justifiably angry and not really interested in detailed legal reasoning.

    Tony Scalia isn’t interested in legal reasoning, either. Legal rationalization, OTOH, is absolutely the name of the game.

  21. 21
    burnspbesq says:

    @Omnes Omnibus (the first of his name):

    Has anyone whose views are worthy of being taken seriously come up with a plausible explanation of how any female Hobby Lobby employee is actually going to have to pay out of pocket for any contraceptive (other than condoms, which weren’t covered in the first place)?

    http://www.newrepublic.com/art.....ens-rights

  22. 22
    acallidryas says:

    It is clear that people, not corporations, have the right to decide how their community develops,” said Dryden Deputy Supervisor Jason Leifer in a prepared statement.

    This line confuses me. Aren’t corporations the best, most perfect, and wisest of all people?

  23. 23
    scav says:

    @Roger Moore: Legal rationalization bleeds into legal reasoning, the more tenuous tie is sometimes to logical, especially real-world practical reasoning. If they can find a precedent for declaring a foam peanut a person, they’re fine with it and it’s off to the black robes.

  24. 24
    beltane says:

    @acallidryas: Corporations are also the most spiritually pure of all people, so pure that the stand with the angels.

  25. 25
    Belafon says:

    In Texas, cities exist at the pleasure of the state. The state is the ultimate authority on matters.

  26. 26
    Omnes Omnibus (the first of his name) says:

    @burnspbesq: Of course, a case that says RFRA justifies for profit corporations taking religion into account in their decision making processes will have no precedential value. Right. Sure. While I agree that the employees of Hobby Lobby won’t actually be fucked over, the decision that a corporation could have religious values is the major problem here. Right?

  27. 27
    Violet says:

    @burnspbesq: The details of this case, where Hobby Lobby female employees may end up have their birth control covered under federal subsidies, is less the cause for anger than the way the Supreme Court, in two consecutive rulings, decided that women are second class citizens. Their work in a home isn’t really work and their right to control their own health is secondary to the rights of their employer.

    It may work out or it may not for the female employees of Hobby Lobby that their birth control is covered. I hope it does go in their favor. What is clear is that women are non-persons in the eyes of the Supreme Court. No fancy legal words can hide that.

  28. 28
    xenos says:

    @burnspbesq: From the cited article:

    [the court] ignored the bogus subsidy option, and noted instead that the Obama administration had crafted a clever solution for religious nonprofits. Those companies’ insurers were required to provide contraception in separate policies, for free—something the insurers were happy to do, because even expensive contraception is cheaper than childbirth.

    Would not the Little Sisters case, when it comes around, allow a religious employer to block such accomodations? I expect that yesterday’s narrowly written decisoin is going to fit with the next narrowly written decisions to make contraception broadly unavailable for a lot of people.

  29. 29
    Violet says:

    @Omnes Omnibus (the first of his name): I want to know what church Hobby Lobby goes to. Can we find their baptism and confirmation records? Can we quiz Hobby Lobby on the books of the Bible? Does Hobby Lobby attend church regularly and participate in things like Sunday school? Does Hobby Lobby sing in the church choir? No? Why not? Let’s keep asking the questions.

  30. 30
    Violet says:

    @burnspbesq:
    From your link:

    The Court’s decision essentially required that the same accommodation be extended to religious for-profit employers. That will create some administrative headaches, which is why the administration resisted. But the alternative was imposing a heavy burden on the owners of Hobby Lobby, who clearly take their religious scruples very seriously.

    (Bolding mine.) So in one paragraph the author says the court extends accommodation to religious for-profit employers. In this case that is Hobby Lobby. Hobby Lobby, the corporation, is the employer, right? In the next sentence the author says not doing so would have imposed a heavy burden on THE OWNERS of Hobby Lobby. Not Hobby Lobby itself. The owners.

    So which is it? Is it Hobby Lobby that has religious beliefs? Or is it Hobby Lobby’s owners? They are not the same thing. The corporation is one thing. The owners are another. That’s why there’s a corporation to begin with–to separate out legal liability from the individual owners. If the corporation is the same as the owners, where’s the line? Shouldn’t the owners be held liable for everything the corporation does if the corporation has the same beliefs as the owners? There is no line.

  31. 31
    Not Adding Much to the Community says:

    @⚽️ Martin: Yeah, well, it’s not like they’re using it.

  32. 32
    Omnes Omnibus (the first of his name) says:

    @Violet: This idea sends me just about ’round the bend. Corporate person-hood is a legal fiction designed to allow corporations to contract on their own behalf and sue in courts on their own behalf. The invention of the corporation allowed people to avoid legal responsibility for thing their company did, but it should, at the same time, limit what these people can do.

  33. 33
    gian says:

    @burnspbesq:

    regulation can be a taking, a south Carolina zoning regulation case made it to the Supremes on just that theory over 20 years ago.

    I doubt highly the five reactionary outcome determined knuckle draggers would balk at a chance to extend the concept from building a house to poisoning water.
    this is the worst court since the gilded age and FDR’s plan to expand it past 9. arguing that the 5 reactionaries have any real respect for precedent is wishful thinking.

  34. 34
    MikeJ says:

    @Omnes Omnibus (the first of his name): I never understood why Hooby Lobby has to be a corporation. There’s no such object as a corporation. They’re an abstract idea the government thought up whose sole purpose is to allow individuals to escape responsibility for their actions.

    A corporation obviously can’t have religious views. Dumbfuck could obviously do a reorg and set up as a sole proprietorship. Sure, he loses some of the handouts the government gives him, but he has no “right” to those handouts. If he wants to pierce the corporate veil, let’s help him along.

  35. 35
    gian says:

    @Omnes Omnibus (the first of his name):

    and Bush v Gore explicitly says not for use as precedent
    because they might have to rule on the same facts and law the other way to elect a republican next time.

  36. 36
    Violet says:

    @Omnes Omnibus (the first of his name): Yep. And I think that’s why it’s worth asking questions and getting the absurdity out in the general consciousness. If it starts showing up in comedy skits, I’ll know it’s getting traction. Put Hobby Lobby and whoever in skits where they’re sitting in church pews or teaching Sunday school. Have Hobby Lobby sing in the choir. Point out how absolutely ridiculous this sort of thing is. How it doesn’t work. How it can’t work. Corporations are NOT people. They can’t have “deeply held religious beliefs.” It’s not possible.

    Also, see my comment two above re: the article burnsie linked. The author manages to use the corporation and the owners almost interchangeably. No. That is not how it works. The owners are people. The corporation is not a person. Blurring that line so glibly, as the author did, is dangerous.

  37. 37
    beltane says:

    @Violet:

    If the corporation is the same as the owners, where’s the line? Shouldn’t the owners be held liable for everything the corporation does if the corporation has the same beliefs as the owners? There is no line

    .

    An attorney friend of mine says this could expose Hobby Lobby’s owners to personal liability for the actions of the Hobby Lobby corporation, but I somehow doubt this would ever happen. In our brave new world, corporations have all the rights of an individual with none of the duties or responsibilities.

  38. 38
    xenos says:

    @Violet: There is a line – a fuzzy one at times, but real.

    The decision of a court to ‘pierce the veil’ (no loaded sexual metaphor, there, right?) is a matter of state law, with states usually having a balancing test of a number of issues, such a the capitalization of a company, whether there are independent directors, how good the record of corporate formalities are, and so on. In Massachusetts there are 12 factors – good luck predicting the outcome of a 12-factor balancing test.

    Should a tort plaintiff try to pierce the veil and sue the owners of a closely held company, something like using the company as an instrumentality of the owner’s religious beliefs would fall on one side of that balancing test. It would not be dispositive. An interesting issue would be if an employee was directly harmed by the religious policy the owner imposed on the corporation – say a young female employee was blocked from getting prenatal care, had a disabled child and a lifetime of compromised health. Maybe the facts of such a case would affect the balancing test. I can just imaging the resources that would go into flipping such a decision, though.

  39. 39
    Cain says:

    I just don’t understand this whole mentality that corporations = people. I mean how can that be? Corporations are like super beings, they have incredible wealth and power because they are a bunch of folks in the aggregate. They don’t even share the same morals as a real person. A group tends to be more amoral than moral. So it makes no sense to designate a corporation as a super person. This is really just stupid.

  40. 40
    beltane says:

    One thing I will say: This decision is very good news for Hillary Clinton should she decide to run.

  41. 41
    beltane says:

    @Cain: It’s not stupid, it’s evil. It is simply one of the methods the right wing has chosen to empower the rich at the expense of individual Americans.

  42. 42
    Omnes Omnibus (the first of his name) says:

    @Cain: Long ago, the idea of corporations as legal persons was invented to allow corporations to legally act on their own behalf – to do things like sign contracts without obligating the shareholders – to sue someone as an entity – and so on. It is a legal fiction designed to allow certain things, i should not ever have been confused with the idea that corporations are actually people. The concept is demented.

  43. 43
    KG says:

    @xenos: I’ve been wondering what effect this is going to have on the corporate veil. It seems to me that a corporation exercising it’s religious freedom and it’s free speech rights for political issues can weigh heavily against owners on the corporate veil tests.

  44. 44
    xenos says:

    @KG: I don’t know how it will come up, though. The example I used was trying to draw a causal line from damages to the specific policy that weakened the veil, as it were. A more typical example would be a contract claim against a company, or maybe a securities case. Would using a corporation to as a religious or political puppet make is easier to sue the shareholders in order to collect on a bad debt?

    I do not see it making a difference, but it certainly would not help. If I were defending such a company I would really not want to have to deal with it as an issue.

  45. 45
    KG says:

    @xenos: typically piercing the veil has little to do with the nature of the underlying claim. It is usually an issue where the corporate entity doesn’t have funds to pay a judgment. That has traditionally been why veil piercing comes up – the shareholders are treating the corporation of an alter ego

  46. 46
    Petorado says:

    @Violet:
    Texas groundwater is governed by the “rule of capture”, which means the landowner can pump as much water from the ground as they wish, regardless of the impact on others dependent upon the same supply (that’s such an “only in Texas” law.) Which is why you have this:

    T. Boone Pickens thinks water is the new oil—and he’s betting $100 million that he’s right

  47. 47
    dance around in your bones says:

    Gads, y’all are so serious and stuff. Meanwhile I am watching Mrs. Robinson (who swallowed a bottle of barbiturates) talking to MR! Tibbs! who is trying to save her and Kojack comes into the picture as well…..

    Yes, it’s The Slender Thread on TCM and it’s more Mad Men than Mad Men – everybody smoking at work and racks of tubes to fit plugs into to trace a phone call and faux brick walls that are the height of fashion in the 60’s and Mrs. Robinson in fabulous black and white walking into the ocean and oh my gawd here comes Kojack trying to save her along with MR! Tibbs! And yes, Kojack was bald back in 1965.

    I have a feeling Steep would love this stupid movie ;)

  48. 48
    srv says:

    Anti-frackers are the intellectual equivalent of anti-vaccine crowd.

    Liberal New Yorkers don’t understand freedom, mineral rights or science. Fortunately, the courts can be relied upon to be a bit more rational in their reasoning.

  49. 49
    Elizabelle says:

    @dance around in your bones:

    Watching the very same thing! Fitfully. Good evening.

  50. 50
    dance around in your bones says:

    @Elizabelle: It’s hysterically funny in a weird way, no?

    Good evening to you, too!

    (Oh, now we are in a Disco! Where are the Disco biscuits?) I guess Mrs. Robinson has them all…

  51. 51
    Elizabelle says:

    @dance around in your bones:

    Ed Asner was flitting around earlier too.

    FWIW: Sidney Pollack’s first film, and he’d worked in TV previously. Maybe that accounts for the casting?

  52. 52
    Elizabelle says:

    Are people that chatty after swallowing a bottle of barbituates?

  53. 53
    dance around in your bones says:

    @Elizabelle: I meant to mention Ed.

    Sydney definitely got better as he tootled along.

    Oh, fuck me! “Wiggle your toes!” I am dyin’ here.
    eta: generally not. More like comatose.

    Now THEY’RE all laughing! Barbiturates are infectious!

  54. 54
    Cain says:

    @Omnes Omnibus (the first of his name):

    @Cain: Long ago, the idea of corporations as legal persons was invented to allow corporations to legally act on their own behalf – to do things like sign contracts without obligating the shareholders – to sue someone as an entity – and so on. It is a legal fiction designed to allow certain things, i should not ever have been confused with the idea that corporations are actually people. The concept is demented.

    But if you are going to worry about the religious freedom of a corporation’s owners or shareholders or whatever, then aren’t you adding more personhood nonsense to corporation?

  55. 55
    Mnemosyne says:

    Since it looks like there won’t be a new open thread anytime soon — so I did my first day of exercise via Fitocracy today. Ah, yes, now I remember — you know you’re doing ab exercises right when you want to throw up afterwards. Gah.

    Tomorrow, I ride my bike to work. Unless I’m too lazy and get a late start. Again.

  56. 56
    KG says:

    @Cain: it’s a double edged sword. On the one hand, yes the corporate person is gaining rights. On the other hand, you are whittling away the differences between the corporation and the owners. Doing away with those distinctions, which I think these cases will do, are going to open owners up to liability

  57. 57
    dance around in your bones says:

    Jeez, it looks like it took vast amounts of people and primitive computery type of stuff to save Mrs. Robinson’s life back in the day. MR! Tibbs! is getting pretty hysterical.

    Champagne and cigarettes! Kojack is sweaty.

    I should go to sleep, I guess, but I have to see if they save Mrs. Robinson so she can seduce Benjamin later.

    eta: She’s still breathing!

  58. 58
    A non mouse says:

    I’ll believe corporations are people when they start homo-corporation marrying one another. And laws against that will be on the books in red states.

  59. 59
    Villago Delenda Est says:

    @efgoldman: Well, the needs of the corporate persons are far more important that clean water for the serfs.

  60. 60
    Villago Delenda Est says:

    @Omnes Omnibus (the first of his name):

    The concept is demented.

    So are the five justices who voted in favor of Hobby Lobby.

  61. 61
    danielx says:

    Why shouldn’t a community be able to decide whether outside energy interests can poison their land or not?

    Because conservatism: a peculiar mindset in which local or state laws/regulations which conservatives favor are all powerful and should be considered valid, while local or state laws/regulations which conservatives dislike (such as, say, gun control in DC or Chicago) are outweighed by constitutional concerns.

  62. 62
    flukebucket says:

    I am sure it has already been said but I will say it again. Eventually the Supreme Court will fix this for the frackers.

  63. 63
    bluefoot says:

    @burnspbesq: The thing that people seem to forget too is that MANY people take oral contraceptives for a multitude of reasons besides preventing pregnancy. I forgot the actual numbers, but it’s a huge percentage of prescriptions are for medical issues. This whole thing really pisses me off.

    Re fracking: thanks for the link to the opinion. I wonder if this is one of the cases one of my siblings was helping out with to get the ban in place. My sibling asked me for some advice reading the analytical data of groundwater post-fracking from the energy companies (I have some analytical chemistry background). From what I could tell, the data was a little (ahem) problematic. I will have to ask and see if it’s the same case. If so, I may need to send some nice booze to NY in congratulations.

  64. 64
    dmbeaster says:

    Local control has long been recognized as a problem for the oil industry frackers, and they have used control of state governments to ban the power of locals to interfere in fracking. Best example of this is Pennsylvania. The same could be done at the federal level if they controlled the US government.

    Its an age old strategy — use pre-emption by a higher government power to get what you want.

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