Friday, August 15, 2014

Minisink lost appeal (Minisink Residents v. FERC)

DC Circuit Court to Minisink Residents:

Sorry, you DO NOT MATTER. Suck it up.
The rest of the country needs the gas.
Their collective rights trump your individual rights.

This does not look good for other people fighting FERC cases.
The DC Circuit Court is the court of original jurisdiction for all
cases appealing any FERC decision.

Opinion for the Court filed by Circuit Judge WILKINS.

"Given the choice, almost no one would want natural gas infrastructure
 built on their block. "Build it elsewhere," most would say.
The sentiment
is understandable. But given our nation's increasing demand for natural gas
... it is an inescapable fact that such facilities must be built somewhere.... "

Minisink Residents for Enviro. v. FERC 08/15/2014$file/12-1481-1507746.pdf

To recap other recent cases involving FERC:

The DRN v. FERC case was very important because the Court admonished FERC that they cannot
segment cases in violation of NEPA (National Environmental Policy Act), despite the fact
that the projects involved are already built and in-service;
Then this case came out in July, which says that FERC can violate NEPA
or other laws all they want to! But citizens cannot bring petition for review

unless they have suffered actual injury-in-fact (in this case, health impacts
from radon gas exposure from Marcellus shale gas in homes.)

Bottom line to communities:

1: FERC is a rogue agency which is NOT funded by Congress,
    but by the very industry they regulate. They have a mission to
    build out gas infrastructure.

2:  FERC's Environmental Impact Statements  leave out upstream and downstream
    impacts, as well as many other concerns raised by people during the scoping process. 

3: Neither the President nor Congress have oversight over FERC's operations.
    (Although Congress could TAKE control by changing the law).

4: The system is rigged so lawsuits can only be filed AFTER FERC issues
    their permit.

5: The permitting agency (FERC) is different from the safety agency (PHMSA)
   so FERC generally does not get input about an operator's safety or compliance
   record into the permitting process.

6: The DC Circuit Court seems to be very pro-gas, pro-industry, anti-local communities.
    Allows FERC to violate the law by refusing standing to plaintiffs.

7: Bottom line: Any community fighting a FERC project should try EVERY POSSIBLE
    LEGAL REMEDY, but be prepared to lock down and blockade the project with your
    bodies, using Nonviolent Direct Action (NVDA).

If we look back to the Civil Rights cases, the federal courts eventually changed,
but it required a massive movement of people.

There are 100 different battles against various new infrastructure buildouts
all over the country... I suggest we find more ways to join together and fight
these battles collectively.

There is already work underway on having a regional meeting to link people
& groups fighting pipelines
in the Northeast... this looks like the meeting
may be December. Contact me if your group wants to get involved here
and I'll pass along to the organizers.

There is also an effort to try to get congressional hearings on all of these
infrastructure projects destroying communities. If you were not on the call
today and want to keep informed, again let me know and I will try
to get your group connected to this effort.



May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

Don't forget to sign the
Pledge to Resist
the Constitution Pipeline:

Friday, August 8, 2014

Atlantic Sunrise Pipeline, FERC EIS scoping hearings, COMPLETE video coverage

Thanks to videographers Scott Cannon, Leland Snyder, Dean Marshall, and moi (BH),
we have complete coverage of FERC's EIS scoping hearings for the Atlantic Sunrise Pipeline.

I have created a master playlist (which will be complete after my 5 segments from Annville finish uploading)
I have limited contacts with the groups in PA fighting this pipeline,
so please help distribute this info the the appropriate people.

Hopefully this record will be helpful at stopping this pipeline
which will only further increase the massive environmental impacts
seen at the source, in the fracked gas fields NE PA.

Additional NOTES:
  • The Docket number is currently PF14-8, but this will change once the application is made.
    View the record so far:,%20issuance&dkt=pf14-8&ft=fulltext&dsc=description
  • DO NOT SIGN with the pipeline company! Do not allow them to enter your land.
  • If you have signed an agreement, or allowed survey access, send Williams / Transco a Letter Rescinding Access. Here is a sample letter. BE SURE TO CHANGE IT because this was designed for a different pipeline. Include the Docket #PF14-8 and send it certified mail.
  • Once Williams/Transco files the formal application, IT IS EXTREMELY IMPORTANT if you are affected by this pipeline in any way, that you register as an intervenor. Only intervenors will have rights to file a lawsuit later. Here are (example) instructions on how to intervene for a different pipeline. AGAIN: YOU WILL HAVE TO CHANGE THE DOCKET NUMBER for the Atlantic Sunrise.
  • Learn the relevant law:


      1. Natural Gas Act
        • 15 USC § 717
        • e.g., 15 USC § 717f
      2. National Environmental Policy Act
        • 42 USC § 4321 
        • 42 USC § 4331
      3. Criminal Law
        • 18 USC § 201 
        • 18 USC § 1001
        • 18 USC § 2331

      • 18 CFR § 157.10(a)(1)
      • 18 CFR § 157.10(a)(2),
      • 18 CFR § 157.14
      • 18 CFR § 380.6
      • 18 CFR § 380.10(a)(1)(i)
      • 18 CFR § 385.211 
      • 18 CFR § 385.212 
      • 18 CFR § 385.214(a)(1)
      • 40 CFR § 1502.4

  • Delaware Riverkeeper Network won an important lawsuit concerning Project Segmentation and Cumulative Impacts analysis (Delaware Riverkeeper Network v. FERC, 13-1015, U.S. Court of Appeals for the D.C. Circuit)

    Essentially, the courts have admonished FERC to consider the cumulative environmental impacts of the proposed project "as well as related past, present, and reasonably foreseeable projects, as required by NEPA, the National Environmental Policy Act.
  • However, as a practical matter, this decision is diminished by the fact that the projects involved are mostly completed, in the ground and in-service.  The system is rigged, so that lawsuits can only be filed after the permits is issued, so at that point is is mostly TOO LATE, since lawsuits can proceed long after the project is completed.
  • Additionally, another recent decision from the same court (12-1470. No Gas Pipeline, et. al., v. FERC. U.S. Court of Appeals for the D.C. Circuit) ruled that FERC can violate the law (NEPA and the Natural Gas Act), and as long as there are no demonstrable "injury in fact", NO PERSON OR GROUP has the right to ask the Courts for review!! So the situation is rather bleak.

    One legal tactic which I have not seen tried yet is a lawsuit seeking INJUNCTIVE relief, meaning, asking the courts to BLOCK FERC from issuing a permit PRIOR to issuance, due to a clear and present danger. This is an opportunity for legal research.
  • FERC is organized as an "Independent Regulatory Agency", with little oversight from the President, or Congress (although ultimately they derive their authority from Congress).

  • FERC's budget in 2012 was $304.6 million dollars, and $0 was funded by Congressional appropriation. Huh? YES, FERC is 100% funded by fees which is paid by the very industries which it regulates!

  • The net result is that FERC is nearly 100% unaccountable to any branch of government, or the people. Here is a silly song about this very bleak truth:

  • Some people are very excited about CELDF's "Model Community Ordinances". I am a huge fan of Tom Linzey, and CELDF, and I am a CELDF Democracy School graduate (2004). However. I am unaware of any instance where such an ordinance has been used to block a project with federal jurisdiction (like an interstate pipeline).

    I DO encourage you to investigate this approach! We must try everything.

    Here is a great speech by Tom Linzey explaining how useless that participating in a permitting process (like this FERC process), because the game is rigged against us. MUST WATCH THIS. If you don't have much time, JUMP TO 12m:30s

  • So friends, realistically, the situation is bleak. The game is rigged.

    The ONLY thing that will defeat a project like this

    We have been able to slow down the Constitution Pipeline, and have delayed the project so far by at least a year. But this took a huge effort!

    You should try EVERY administrative remedy available to you, including letters to your Congressional reps, participating in the FERC public hearings, and even lawsuits.

  • But you should also be prepared for NVDA: Nonviolent Direct Action,
    blocking the bulldozers with your bodies, should these remedies fail.

    There are organizations like Ruckus Society (and others) which will come to your town and give you this training. There are also useful materials on the internet. Just search for "NVDA Nonviolent Direct Action"
I hope this is helpful,

May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

Don't forget to sign the
Pledge to Resist
the Constitution Pipeline:

Wednesday, August 6, 2014

HEADS UP! DEC Proposes Updates to Petroleum, Used Oil and Chemical Storage Regulations!


Please help get this out to other environmental / fracking lists in NY!

URGENT Time sensitive info! -- BH

From: New York State Department of Environmental Conservation []
Sent: Wednesday, August 06, 2014 1:04 PM
Subject: DEC Proposes Updates to Petroleum, Used Oil and Chemical Storage Regulations - A New NYSDEC Press Release


DEC Press Release
You are subscribed to receive updates from DEC. Links to receive help or to change your preferences are provided below. Having trouble viewing this email? View it as a Web page.

The NYS Department of Environmental Conservation has issued the following press release:

DEC Proposes Updates to Petroleum, Used Oil and Chemical Storage Regulations

Public Comment Period on Proposed Changes to Run Through November 4, 2014

The New York State Department of Environmental Conservation (DEC) has proposed changes to update and consolidate Petroleum Bulk Storage (PBS) and Chemical Bulk Storage (CBS) regulations, DEC Commissioner Joe Martens announced today. The proposed changes would clarify existing requirements and should therefore make it easier for those who store bulk amounts of petroleum or hazardous substances/chemicals in tank systems to comply with equipment and handling standards needed to prevent contamination of soil, groundwater, surface water and public water supplies.

"Consolidating, updating and clarifying our bulk storage regulations will bring together many changes made over the years to several state and federal laws and regulations," said Commissioner Martens. "Our proposed changes will allow us to improve environmental standards while making it easier for the owners and operators of nearly 40,000 facilities in New York State to comply."

The modified proposed modifications to the regulations, subject to public comment are: the PBS regulations (6 NYCRR Parts 612-614); the CBS regulations (6 NYCRR Parts 595-599); the Used Oil Management regulations (6 NYCRR Subpart 374-2) and the Hazardous Waste Management regulations (6 NYCRR section 370.1(e)(2)). Parts 612-614 would be repealed and replaced with a combined Part 613, and Part 595 would be repealed and Parts 596-599 would be amended. Subpart 374-2 and section 370.1(e)(2) would also be revised to reflect changes in the federal regulations.

To maximize opportunities for public input, DEC released the proposed changes to the PBS and CBS regulations for informal public comment in August 2013. DEC modified the proposed rule in response to the comments received, and the revised proposals reflecting stakeholder input are now being released for formal public comment. Due to the many issues addressed by these regulations, DEC is providing a 90-day public comment period for these proposed rule makings, which ends on Tuesday, November 4, 2014.

These proposed regulations represent Phase I of a planned two-phase rule making process. Phase II will be proposed after the U.S. Environmental Protection Agency finalizes its rule making process that is currently underway to revise the federal regulations governing the storage of petroleum and hazardous substances in underground storage tanks (USTs) (40 Code of Federal Regulations Parts 280-281).

Phase I is intended to accomplish three important goals:

  • Incorporate changes in state and federal laws, particularly the requirement for tank system operators to receive special training and to describe in more detail DEC's authority to prohibit deliveries of petroleum and hazardous substances to tank systems that are in significant non-compliance with the regulations.
  • Consolidate existing state PBS and CBS requirements and most federal UST requirements so that they are in one set of regulations.
  • Make the PBS regulations more consistent with the federal regulations, particularly regarding key definitions and the structure of the regulations.

To help the public better understand the proposed regulations and be prepared to provide comments, DEC will provide the following opportunities for public involvement:


August 26, 2014 from 10 a.m. - noon

Instructions on how to participate in this live webinar are available the DEC website.

Public Information Meetings

September 4, 2014 - Albany: Empire State Plaza, Meeting Room 6; 1 p.m. - 4 p.m.

September 9, 2014 - New York City: St. Francis College, Founders Hall, 180 Remsen Street, Brooklyn; 9:30 a.m. - noon; 1:30 p.m. - 4 p.m.; and 7 p.m. - 9:30 p.m.

September 11, 2014 - Rochester: RIT Inn and Conference Center, 5257 W. Henrietta Road, Henrietta; 2 p.m. - 5 p.m. and 7 p.m. - 9:30 p.m.

Seating is limited at each public information meeting. Instructions on how to register for public information meetings are available at on the DEC webiste.

Formal Public Hearings

Two public hearings will be held at each of the three locations below, starting at 3 p.m. and 7 p.m. These hearing locations are accessible to persons with impaired mobility.

October 14, 2014 - Albany: Empire State Plaza, Meeting Room 6

October 16, 2014 - Rochester: RIT Inn and Conference Center, 5257 W. Henrietta Road, Henrietta

October 23, 2014 - New York City: St. Francis College, Founders Hall, 180 Remsen Street, Brooklyn

Seating is limited at each public hearing. Instructions on how to register for formal public hearings are available on the DEC website.

A public information meeting will also be held from 1 p.m. - 2:30 p.m. prior to each afternoon public hearing.

The public is invited to submit written comments about the proposed regulations through Tuesday, November 4, 2014. Written comments on Petroleum Bulk Storage Rule-making can be submitted online. Alternatively, written comments may be mailed to Mr. Russ Brauksieck, New York State Department of Environmental Conservation, Division of Environmental Remediation, 625 Broadway, Albany, New York 12233-7020.

All documents and related information pertaining to these proposed rule makings are available on DEC's website.. If you do not have internet access, please write to the address above or call (518) 402-9553.


May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

Don't forget to sign the
Pledge to Resist
the Constitution Pipeline:

Saturday, August 2, 2014

Amazing tools for querying Oil and Gas production data from PA and NY + stuff I've learned from this

Here are four very useful tools for
scientific investigators, bloggers, journalists, and curious people
for querying PA and NY oil and gas wells'
spud and production data, PA drilling waste,
and toxic chemical spills in NY:

I created this amazing map from one of these databases.

Jerry Action used this data to determine there
was little potential for shale gas in NY.


Here are some amazing things I've learned from having coffee
with the developer of one of these tools today:

Lots of info here: but this is one big takeaway:

You know how the Pro-Gas boosters are always saying

"They've been fracking in NY since the 1970s,
and there's never been any problems!"

This is because, only by examining every record in the
NYS DEC toxic spill database
can you learn this:

Of 6885 spills in this dataset, which is everything recorded
for the last 12 years covering 7 NY counties in the Southern Tier,
none are attributed to any source!

So-- Industrial polluters,
(including the Oil and Gas industry,
one of the biggest offenders in the state)
get a clean bill of health because of shoddy reporting
of chemical spills by NYS DEC.

Check it and share this
where you see is appropriate.

May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

Don't forget to sign the
Pledge to Resist
the Constitution Pipeline:

Industrial Polluters in NY State get a CLEAN SLATE from DEC!

Here's some amazing things I learned today
from talking to Johnny Wunder,
a local guy you made an amazing website to harvest
official data from NYS DEC regarding Oil and Gas wells,
as well as toxic chemical spills.

Of 6885 spills in this dataset, which is everything recorded
for the last 12 years covering 7 NY counties in the Southern Tier,
none are attributed to any source!

So you know how the gas industry hacks are always saying:

"There's been gas drilling in NY for 100 years
and there's never been any problems!"
      -- typical gas industry booster

Because of how the reporting is done,
The Oil and Gas industry in NY
has a clean slate according the NYS DEC!
Spills over a certain size associated with mining activity
get investigated by the Minerals Division,
which is a "big black hole", according to Johnny.
He said the paper trail ends there.


Also, get this--
The NYSDEC doesn't investigate and write spill report.
The company who made the mess gets to write the report!

How do you feel about that?

Do you trust corporate industrial polluters
to tell the truth?


Additionally, the entire system is archaic.

Most compliance forms are on paper
and sent through the US Mail, and stored only
in a filing cabinet in some DEC regional office.
So records which might indict the safety of
these companies is not online, and not easily
If you ask for such info under FOIL
you will likely get "No Records Found".

Spills are Propitiatory and Confidential!

For spills associated with oil and gas drilling
there is a 90 day period of "confidentiality" allowed,
allegedly due to the "competitive nature" of O+G mining,

So the information is embargoed away
from public eyes for 90 days after the spill!

If the industry can hide it from view,
this means: NO PIZZA FOR YOU!

Just write "UNKNOWN" on the form,
and call for the vacuum truck!"

For many spills, the quantity is recorded as "unknown".

Oh really? No idea at all?
This is probably due to the self-reporting, and that NYS DEC  has so few inspectors for this region.

So industrial polluters in NY can say whatever the frack they like.

6885 spills, 100% officially have unknown causes
Most wells are lucky to get a site
visit every 18-24 months.
Spills are commonly not inspected at all or
investigated thoroughly, and in 6885 spills,
NONE are attributed to any source!
So despite the fact that,
according to NYS DEC,
there were 6885 chemical spills
in 7 counties over 12 years,
and that most of these spills related industrial activity,
and many associated with the 4123 oil and gas wells in the region,

NONE of these spills are officially associated
with oil and gas drilling,
or have any official cause whatsoever

Have a nice day!


Johnny impressed upon me that while he thinks all the
activist energy which was focused upon the SGEIS and
Regs for fracking shale in NY got all the attention it did,

He says the existing permitting process, spill reporting system,
compliance reporting, and regulatory enforcement
of the many EXISTING CONVENTIONAL Oil and Gas wells in NY
is sorely lacking.

He has impacted water from the drilling of the Stagecoach field,
and has not consumed his local water for about 10 years.

While he is moving out of the area,
he thinks we should pressure the Legislature
to review and modernize the entire system
around permitting and reporting of all Oil+Gas mining
in NY, as there is a DIRE NEED for quality public information.

He has tried to make tools, covering at least the area near where
he lives, accessible to the public on the internet for free,
to partially make up for the extreme deficiencies in the  NYS DEC
online reports, but there is still a lot of work to do.

I hope this is helpful,

May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

Don't forget to sign the
Pledge to Resist
the Constitution Pipeline:

Amazing tools for querying NY and PA drilling data, toxic spills, waste tracking & inspections

Here is info about 4 amazing tools,
and some useful things you can learn
by studying the data they report.

If you consider yourself a blogger, journalist,
scientific investigator
, or just a curious person,
you might find these tools very valuable.

Please send this info to other people/groups
whom might benefit.

You can learn some amazing things
by querying these databases
and you can do original research
to find (break) important news stories
which have never been in any newspaper.

1: Leland Snyder's PA Spud Database

Leland Snyder has created a way to query
the Pennsylvania Spuds database,
which contains spud date, production data,
waste disposal, and inspections, using
a web form and simple SQL calls.

There's a video you can watch to show you
how to make a report and graph it.

With access to the information in this database,
Jerry Action was able to determine there was
very little gas in NY, and where the best prospects
are. (just a sliver a few miles wide, along the
southern edge of Chemung, Tioga, Broome,
and Delaware County NY, along the PA border.

2: Johnny Wunder's NY Well and Spill Wiki
  • 4123 Wells
  • 6885 toxic spills
  • 7 counties (Tioga, Broome, Steuben, Chemung, Chenango, Livingston, Genesee)
  • 12 years
This data is queryable various ways.

What this data shows, by combining these two databases together is that
the history of oil+gas drilling in NY has been associated with MANY
incidents of surface contamination.

This is a site very similar to Johnny Wunder's site, only for PA data (like Leland's site),
strangely based in the University of Alberta:

4: Laura Legere's dataset of 973 PA DEP Determination Letters

This was the first public dataset, other than the two Consent Agreements between Cabot and the PA DEP
over the well known contamination in Dimock, Susquehanna County, which conclusively showed that the
PA DEP knew water contamination from drilling is pervasive in many counties. Almost 1,000 total complaints,
I was able to use this dataset to graph the water contamination complaints in
six counties in NY PA
, along with the well locations from the SRBC, to show the hotspots of
drilling in NE PA are also the hotspots of water contamination complaints.

There are many more stories in these datasets just waiting for you to find!

I encourage you to explore these datasets...


May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

Thursday, July 24, 2014

Fwd: [Unconstitutional Pipeline] LTE on Michael Zagata

---------- Forwarded message ----------
From: Adrian Kuzminski 
Date: Thu, Jul 24, 2014 at 1:58 PM
Subject:LTE on Michael Zagata

This letter was published in the Freemans Journal, 24 July 2014. FYI.



To the Editor:

Your recent laudatory and seemingly never-ending profile of pro-fracker and former DEC commissioner Michael Zagata ---
 quite possibly the longest article ever published in The Freeman's Journal since it began 206 years ago --- leaves readers wholly in the dark about why he has been severely criticized by environmentalists, The New York Times, and others.

In their 1997 book, The Riverkeepers, John Cronin and Robert F. Kennedy, Jr., pointed out that then Governor Pataki fulfilled his promise to make the DEC more "business friendly" by appointing oil company executive Zagata as DEC commissioner.  Zagata proceeded to replace DEC enforcement by industry "self-policing." He dramatically reduced factory inspections, sped issuance of pollution permits by "steamrolling public participation requirements," and ordered inspectors to give six month warnings instead of issuing tickets for "environmental crime." Zagata cut the legal staff by 25%, firing "virtually all of the agencies' pollution litigators." The DEC's principal litigator, Chuck Dworkin, fired by Zagata, stated that "after the purge, everyone put their heads down and stopped enforcing. Now the big companies know they can thumb their noses at the regulated."

As a result, the authors wrote, Zagata "quickly endeared himself to the worse polluters of New York State," the worst of all being GE. At the time GE was facing up to $20 million in penalties for illegal conduct at its Waterford plant above Albany, which DEC counsel Joseph Kowalczyk called "the second most significant hazardous waste problem in the state." After a "secret meeting" with GE, a deal was struck in which the DEC dropped all charges and claims, GE received some tax write offs, and the company got insulated from further lawsuits. GE in return agreed to spend $1.5 million on environmental benefit programs, including building a boat launch on the Hudson conveniently near Zagata's upstate home.

Zagata's anti-environmental views were clear to many, including The New York Times, even before his appointment. In an 18 February 1995 piece, the Times described Zataga as "as inappropriate choice to be chief steward of the state's threatened natural resources." The Times reminded its readers that Zagata advocated opening up "the Arctic National Wildlife Refuge for drilling." The Times also took Zagata to task for supporting "a misguided concept called 'mitigation banking,' which would allow companies to develop protected wetlands on the promise to create new, ecologically suspect sanctuaries."

Zagata eventually got into trouble for personal use of DEC vehicles and was forced out of office to a state-wide chorus of "Zagatago!"  But what is far worse was his consistent record of promoting a mindless, pro-business policy in blatant disregard of established environmental standards and safeguards, and the damage that it caused. It is a sad commentary that your article distorts his public record so dramatically. 

The same week that you published your profile, the NYS Court of Appeals came down with an historic decision, upholding the home rule land use legislation of the towns of MIddlefield and Dryden to ban fracking in their communities. Your coverage of this landmark case in the Freeman's Journal was swamped by your paean to Zagata, while in your spinoff Hometown Oneonta, the landmark case was further reduced to a brief recognition, with your Zagata puff piece even more dominant.

It is deeply troubling that a court decision of great significance affecting not only the future of the natural gas industry in NYS, but perhaps nationally and beyond, was given such short-shrift in your newspaper. This was an event unparalleled in local and state history, deserving perhaps of a special edition of your newspaper, given that resistance to fracking in our area involved hundreds and hundreds of local activists who mobilized thousands of others in unprecedented fashion to persuade 10 municipalities in Otsego County and beyond to resist just the sort of corporate intrusion that Zagata welcomed.  All of which calls into question not only your editor's journalistic judgement on of what constitutes important news, but where he stands on vital energy issues.

Adrian Kuzminski
Moderator, Sustainable Otsego

Robert H. Boyle
Founder, Riverkeeper and The Hudson River Foundation for Science and Environmental Research 

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May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

Don't forget to sign the
Pledge to Resist
the Constitution Pipeline:

Longmont CO Fracking Ban Struck Down -- COMPARED to NY?

Somewhat Troubling--

Everything substantial in the NY cases and the Longmont case seems identical (except for prior caselaw).
In the NY decision (the Middlefield and the Dryden cases), home rule in land use decisions was universally upheld. However with (as near as I can tell) identical basis in law, the courts found something different.

I've just scanned the decision and it seems to me that the NY and Colorado laws regarding local land use and pre-eemption are nearly identical, the Dryden/Middlefield laws, and the Longmont laws were roughly equivalent, and the arguments on both sides also seemed nearly identical.

However, the Colorado courts (in prior caselaw) have (IMO arbitrarily) held that while Home Rule over land use decisions apply, that a municipality cannot completely ban gas drilling.

In Voss v. Lundvall Bros (the "Greeley case") that

Because oil and gas pools do not conform to the boundaries of local government, Greeley's total ban on drilling within the city limits substantially impedes the interest of the state in fostering the efficient development and production of oil and gas resources in a manner that prevents waste and that furthers the correlative rights of owners and producers in a common pool or source of supply to a just and equitable share of profits.

Huh? Do they have local land use controls, or not?

NB: Much of this language sounds identical to the NY law, so it seems that maybe ALEC is behind both the NY and the Colorado laws.

ALSO NOTE WELL how the Environmental Conservation Law has been subverted to PROMOTE DRILLING.

The same thing has happened in NY! Kurkowski/West argued that the Oil, Gas, and Solutions Mining Law, which is part of the NY Environmental Conservation Law (ECL), and this subordinate to it's enabling clause and legislative intent of PROTECTING THE ENVIRONMENT, was in fact intended to Promote Mining.

They way they accomplish this is in when they bolt O+G regulation into the Environmental Conservation Law.

They are very clever to say that the REASON for REGULATING the oil and gas industry under the ECL is to foster:

"efficient development and production of oil and gas resources in a manner that  prevents waste" (an environmental purpose)

This language in the Colorado Law is nearly identical to the NY ECL.

And they always seem to include the phrase about "correlative rights of landowners".

Once that whole package is there, the O+G attys then argue that the legislative intent is to PROMOTE MINING. However, if you trace out the authority of the law back to the state constitution, it is clear this is an usurpation.

Here's the hierarchy of law in NY. Home Rule Powers (zoning) and Police Powers are both based in PROTECTION. This is evident in all levels of NY law, from the Constitution, the NY Town Law, and the ECL.

I am omitting the full text of the enabling statutes and the constitutional authority, but you may want to look these up. (very interesting).

NO WHERE can I find a legislative directive that mining activity or O+G development is a duty of the state, or in the state interest.

The Colorado Supreme Court determined that the Greeley ordinance was preempted by state law. The Court stated:

Because oil and gas pools do not conform to the boundaries of local government, Greeley's total ban on drilling within the city limits substantially impedes the interest of the state in fostering the efficient development and production of oil and gas resources in a manner that prevents waste and that furthers the correlative rights of owners and producers in a common pool or source of supply to a just and equitable share of profits.

Let's remember Chip Northrup's early presentations that the notion of "pooling" refers to conventional oil+gas development. However shale gas deposits are SOLID ROCK, so the notion of "pooling" is irrelevant and a false analogy.

See: or

They then go on to state something rather bizarre:

In so holding, we do not mean to imply that Greeley is prohibited from exercising any land-use authority over those areas of the city in which oil and gas activities are occurring or are contemplated.

In sum, the Colorado courts, with the SAME BASIS IN LAW AS NY, found that promoting oil and gas development is in the interest of the state, and that while a town has Home Rule authority over local land use (YAY!), they can prohibit such mining activity in certain areas, but cannot ban it altogether (Huh?).

Local municipalities have the power to say No to Drilling,
as long as they say Yes to Drilling.

I see no reason why the NY courts could not have done something similar.

Since I am not a lawyer,
I would appreciate analysis from experts... :)


May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

Don't forget to sign the
Pledge to Resist
the Constitution Pipeline:

Monday, July 21, 2014

A Line in the Sand (get jazzed video)

Friends, if you want to get jazzed about
the state of the movement,
then may want to check this:

A Line in the Sand at Watkins Glen, NY

This is one of the best things I've seen in a long time...
Hope you can find some time
and watch all 6 videos
of the Watkins Glen resistance to the LNG/NGL storage facility
which would industrialize a precious tourist and farming region.

Also, in case you didn't make it to DC,
then watch the Stop Cove Point Rally video:

Rachel Heinhorst & Family (Cove Point Ground Zero)

The People's Puppets perform "The FERC Rubber Stamp Song"

Dr. Sandra Steingraber:

Craig Stevens:

Fred Tutman

Tim DeChristopher

If you only can watch one, then
Holy God-- watch Rev. Lennox Yearwood.

Enjoy and Share!

May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

Don't forget to sign the
Pledge to Resist
the Constitution Pipeline:

Friday, July 18, 2014

Pledge to Resist the Constitution Pipeline (Please Read)

This page:

Sign the Pledge:
Hi all--

I have been working on documenting and resisting
the absurdly named "Constitution Pipeline" project
for the last 2.5 years.

This pipeline, if built, would
  • Cause severe and lasting regional environmental impacts, including the destruction of 
  • Demand a dramatic increase in the pace of fracking in NE PA,
    where they have already suffered grave impacts to their health
    and well-being, and seen their rural communities transformed into heavy industrial zones.
  • AND promote fracking in NY.
I have documented dozens of hours of public hearings,
where I and others have found countless deficiencies,
omissions, and outright fraud in the application, and also
FERC's draft EIS.

It is becoming clear to me that FERC is not only an unelected
agency, but it is utterly unaccountable to the President, Congress
or We the People.

And the "public participation" in the permit proceedings are a sham. 

As of the recent decision in the DC Circuit Court decision
("No Gas Pipeline vs. FERC"), it was ruled that,

-- GET THIS!! --
FERC can VIOLATE THE LAW (in this case, the National Environmental Policy Act),
yet citizens cannot petition the courts for review
unless they have suffered demonstrable environmental harms or health impacts

(which, like the case of Radon exposure, can take 20 years to manifest).

This means that -- barring Congress changing the law --
 FERC is utterly unaccountable .... to anyone*

(* except the energy industry which pays their salaries.
YEP! It's true! FERC receives $ZERO funding from Congress!!)

I am an intervenor in this project who lives in an area
which would suffer large-scale regional impacts should this get built,
against the wishes of the majority of people here.

I have many friends and family who live in the gasfields of PA who have
already suffered grave impacts, and development there would increase
dramatically to supply this pipeline.

That's why I created a petition to the FERC Commissioners and to President Obama.

I was just in DC last weekend, and I will tell you this:
for being the ONE PLACE which has
Now we must resist fracking infrastructure.

I and others have not given up hope on Administrative Remedies.
We have several clever legal maneuvers up our sleeves.

However, we need a back up plan, should these remedies fail.

NY is the place where we will REVERSE the move to frack.
People, it's time to take a stand.
For present and future generations.
Let the resistance begin with me.

Will you please sign and share this petition?
-- OR --
Bill Huston

May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)