Andrew Reinbach: Fracking and El Rushbo

New York's war over fracking is lurching toward the state Court of Appeals, where it will languish for the best part of two years to little purpose because everyone involved expects the ball to be lobbed to the state Assembly for clarification after the decision is handed down.

Along the way, the entire thing has gotten so tangled in left/right politics, apocalyptic rhetoric, demonized opponents, shout-down meetings, and two sets of facts that it's almost impossible for the sides to talk to each other, or, for that matter, anyone who doesn't agree with them.

Want irony? The sides have swapped political turfs; the politically conservative industry and its supporters are standing for a strong central government, and the people they call a bunch of outsider, tree-hugging hippies want home rule -- local control and government devolution.

In a shocking development, things have gotten testy.

Thomas S. West, for instance, a genial and talented lawyer quarterbacking the industry's legal team, says "The people opposed to drilling will use any tool to their hand to win. They don't care about the ideological implications."

Replies Henry Cooper Jr,, a prominent anti-fracker: "I don't see why the oil and gas industry should not be subject to local control, like all other industries. I think fracking is too polluting, and too destructive of the countryside, to be a viable industry -- that's the nicest thing I can say about it."

You can't call the 78-year-old Cooper any sort of hippie, much less an outsider in upstate New York; his ancestor founded Cooperstown, N.Y.

By now, few people need be told what fracking means. But as a matter of form; fracking is industry slang for horizontal, slick water hydrofracturing, a method used to maximize production from an oil or gas well.

Fracking pumps millions of gallons of water, sand, and chemicals under high pressure into a horizontally-drilled well bore, which mixture fractures rock a mile or more under the surface and maximizes the amount of oil or gas that can be recovered from said well. Some of the chemicals used are highly toxic, and whether fracking is -- or can be -- done safely is a matter discussed at dagger points.

The rhetoric and politics surrounding fracking has steadily put the industry on the defensive; Matt Damon is set to star in an anti-fracking movie called The Promised Land, for instance -- proof, if any was needed, that the industry and its supporters are right when they concede they've lost the PR war.

This is because; say observers, they've consistently swung for the bleachers with claims that were just as consistently exploded by an opposition playing moneyball.

As events progressed, pro-drilling arguments that had always worked before -- that fracking was perfectly safe and had been practiced for years, that it was all about energy independence, or local jobs -- were either disproved or badly damaged by news of well blowouts, drilling-related contamination -- even fracking-related earthquakes in Ohio.

Pro-frackers have typically responded by either doubling down on issues, trying to minimize or cast doubt on bad news, turning it into a joke, or, eventually, getting angry in public meetings, interviews with journalists, and online comments like this one, made on the Letters to the Editor page of the April 4 edition of Otsego County's Daily Star:

Oh how awful. The Concerned Burlington Neighbors (aka concerned transplants) complain that their goals have been misrepresented. Well newsflash, they have been misrepresenting the effects of gas drilling for sometime now. Oh, and one other thing, the concerned neighbors also represented that Burlington was the last hold out to do anything to protect ourselves from those evil gas people. Well, obviously from some of the other posts that's not accurate either. I guess only the good concerned neighbors are allowed to voice an opinion on the issue.

To be fair, anti-fracking people can be just as shrill and aggressive at public meetings and conversation as their opponents, and some of their private opinions about fracking lean toward the apocalyptic when it comes to what fracking is, means, or will do. But in print, at least, their tone tends to be reasonable, and they've based their arguments on science and proven facts -- all rejected as lies by the other side.

This was largely by design, says Adrian Kuzminski, a retired philosophy professor who helped found, and serves as moderator of, an anti-fracking, pro-sustainability group and message board called Sustainable Otsego. In a supreme irony, Sustainable Otsego has even elected members to local government, including the County Board of Representatives -- something that would never have happened had the gas issue not arrived.

"I wanted to keep the rhetoric on a low flame," says Kuzminski. "I thought that the only way to win this was to convert the middle class, and we did that by avoiding name-calling, personalizing, and purity stuff."

That call by Kuzminski was probably a good idea, since name-calling is the best way to lose a public fight.

Full disclosure: I live in Otsego County and have helped write something for Concern Burlington Neighbors, which is active in my own town.

Just to add insult to injury for the pro-frackers: The U.S. market price for natural gas has collapsed to less than half the cost of drilling, killing any economic case for drilling and leaving the fracking ship on its beam ends. The market rule-of-thumb cost of drilling a well -- about $4.35 per thousand BTUs -- is more than twice the April 3, 2012 spot price of $1.87 per thousand BTUs. Since then the spot price has risen about $.12 cents, while futures prices have been running about $.20 cents higher than spot.

Fracking has even become an international cause c?l?bre. A March 2012 meeting of the Alternative Water Forum in Marseilles, France, for instance, adopted a platform that said "We affirm our determination, our categorical opposition against all extraction of shale gas and every use of hydraulic fracturing on our territories."

Quebec very recently declared a moratorium on fracking, pending further study about whether it can be done safely, and public debates have spread as far as Romania.

Added up, you can understand why the industry and its supporters feel they're on the defensive. Yet unless gas drilling is completely banned in New York, all that last really means is that when the market rights itself, the industry will have to re-lease the same lands on better terms for landowners, with much safer technology and stronger environmental regulation, than they were when the leasing boom began five years ago.

In New York, the fracking story has no shortage of ironies.

Chris Denton, for instance, an Elmira attorney who had the bright idea of building landowner coalitions he could represent, went around the state in the early days explaining to large audiences that the four-page leases so-called "land men" were laying on their kitchen tables for signature threw almost all the liabilities on the landowner's shoulders in return for tiny signing bonuses and unspecified royalties; if somebody broke their ankle on the drilling site, for instance, the landowner would get the bill.

This implied that drilling deals had hidden environmental and legal dangers that needed to be addressed and raised suspicions that the anti-fracking groups jumped on. Within a year, public opinion went from "drill here, drill now" to "safe drilling or no drilling."

And how about these apples? The first home rule law was passed in 2010 in Virgil, in Cortland County. But the push for home rule really took off in places drilling may never happen--near Ithaca and Cooperstown, where gas shale deposits are unpromising. Aside from lands near Lake Ontario, virtually no area with promising deposits -- along the Pennsylvania border, for instance -- is on the home rule bandwagon.

More to the point, comparatively few bans, moratoria, or even talk of such exist in most of the state. Twenty-two towns have banned gas drilling in New York, 66 have passed moratoria, and another 66 have groups working for one or the other out of 1,607 counties, cities, town and villages.

But because the notion could upend the whole enterprise, the idea really got the industry's attention. And they did something counterintuitive; small government types almost to a man, they turned for help to Albany and Washington.

Why?

"The industry has its relationships at the top of government, so it made sense for them to go top down," says Helen Slottje, who, together with her husband David, runs an Ithaca-based non-profit called The Community Environmental Defense Council, Inc. that's a prime mover for home rule. "The grass roots had the advantage of a body of law that tends to balance the books; that helped them push back."

The industry's legal position is that a paragraph in the state's oil and gas law trumps local zoning laws, and that not only do the facts of modern, commercial gas drilling make it impractical to have to deal with what they see would be a crazy quilt of local laws, but the highly technical nature of fracking makes it necessary for all regulation to be in the hands of government experts.

Unmentioned in that argument is the fact that local controls aren't needed where no drilling occurs. But the home rule idea really irks the conservative Republicans who make up a large percentage of energy professionals.

"There are a lot of people concerned with the disregard of individual property rights, and the individual resources that would propel that," says John Holko, secretary of the New York Chapter of the Independent Oil and Gas Association. "If three people on a five member town board can decide if you can develop your resources, what becomes of our liberty?"

Stuff and nonsense, says the home rule crowd; property rights aren't unconditional -- you can only do what you want with your land if you don't hurt anybody else's land. And in any event, home rule is a conservative argument -- governments receive their just powers from the consent of the governed, so it follows that local citizens who don't consent to something have the right to prevent it, and governments that deny the people that right exercise unjust powers.

Early on, local drilling supporters had routinely threatened town boards and their members with million-dollar lawsuits if they didn't allow drilling, or even if they wanted to study it, all the while complaining their opponents were lying. But observers say that in at least one of the suits now on appeal the industry picked a fight over the law so it could shift things to the courts, where it could use its money against poor town boards.

The industry's money may not win the day so easily, though; upstate people with deep pockets have stepped to the plate with their own money. These reportedly include Jane Forbes Clark, an heir to the Singer Sewing Machine fortune and owner of Cooperstown's Baseball Hall of Fame and at least 10,000 acres nearby. Ms. Clark's office issued a statement supporting the fracking opposition but didn't comment on the persistent rumor she helps finance it.

"It's safe to say that the industry was looking for a test case (over fracking in New York), and that Anschutz chose this issue to do that," says Kate Sinding, a senior attorney with the Natural Resources Defense Council. "This is not about the money -- it's about establishing a precedent."

Sinding means billionaire Philip Anschutz, whose company, Anschutz Exploration Corp., paid what his lawyer Tom West says was $5.1 million for gas leases to 22,000 acres in the town of Dryden, near Ithaca. But Dryden, filled with people who worked at nearby Cornell, had banned heavy industry in 1968, and amended the law in 2011 to include gas drilling.

Anschutz sued Dryden last fall to force the issue, and lost this February. Another suit, in Middlefield, near Cooperstown, was also turned down in February. Both are being appealed and likely to be consolidated into one case. West pleaded the Dryden case and advises on the Middlefield case.

The plaintiff in Middlefield, Jennifer Huntington, is affable, gracious, and a modern, scientific diary farmer who milks 300 cows, presses her own bio-diesel fuel, and makes her own power with a methane generator. Unlike Anschutz, she runs a small business.

She concedes she'll probably never make any money with the gas lease she signed at her kitchen table in 2007 without consulting her lawyer -- if nothing else, the company she signed with is almost broke -- and says she's pursuing her lawsuit on the principle that landowners should be able to make a living with their land.

It's possible that she may not have known that Middlefield had likewise banned heavy industry -- in 1975 -- and amended it in 2011 to forbid gas drilling activity. In any event, she insists there was no such law when she signed.

That doesn't apply to a man like Anschutz, whose net worth is estimated at about $7 billion. He would have been very unlikely to have laid out $5.1 million before having his lawyers make sure he could get a return on his investment, and if his lawyers hadn't told him what Dryden's law said, they'd have been fired. He had to have known what he was doing.

Anschtz may have ideological motives; well-known on the extreme right, he's reportedly served on the board of the secretive Council for National Policy. The Council for National Policy is considered a sort of right wing central committee.

The fracking brawl is becoming a right wing cause with or without Anschutz; John Birch Society (JBS) literature was sitting at the sign-in table at a recent pro-fracking meeting in Oneonta, in Otsego County, and a man got up at the end to urge the attendees to "Read those brochures and learn what's really going on."

The brochures in question are about something called "Agenda 21," which Birchers say is a United Nations plot to end U.S. sovereignty, confiscate all private property, and give rocks human rights by imposing sustainability programs sponsored by the United Nations. The JBS itself didn't comment on its interest, if any, in fracking or in Agenda 21.

You could laugh at the notion the U.N. was trying to give human rights to rocks, but there really is an Agenda 21; it was adopted in 1992. The U.N.'s website says "Agenda 21 is a comprehensive plan of action (to support sustainability) to be taken globally, nationally and locally by organizations of the United Nations System, Governments, and Major Groups in every area in which human (activity) impacts on the environment."

The larger issue over fracking is very simple: Energy companies want to be free to drill for gas in New York, and the opposition wants to be free from drilling. Compared with that, all the hoo-hah over science, technology, and morality is beside the point, along with anti-fracker notions that the industry wants to turn rural New York into a factory floor, and industry ideas that their opponents want to turn everyone into a vegan.

But as usual once something is in the hands of the law, the questions that will decide matters are narrow. You can read the primary court papers here.

The main legal issue: Whether zoning is regulation -- that is, whether regulating how something is done is the same as regulating where something is done. Aside from the prospect of gas drilling in New York., at stake is 96 years of law and court decisions that say local governments can decide what happens inside their borders -- zoning.

At least connected to gas drilling, the issue is unclear. The nub of the arguments is that the New York Constitution and the state's Local Governments Statute say local government controls what happens within its borders, but that paragraph in the state's oil and gas law, commonly referred to as the supercession clause, says that local governments can't regulate the industry. The courts have so far ruled that how doesn't mean whether, but the industry says otherwise.

Time, as they say, will tell.

How the gas industry got itself in this mess has a lot in common with how Rush Limbaugh's sneers about Sandra Fluke's contraception may have cost the Republicans the November elections.

Both trapped themselves in tough spots by starting with rhetoric that collapsed under scrutiny. Both assumed they could say what they'd said a million times and life would go on. Both kicked over a hornet's nest, and attracted the wrong sort of attention from people uninterested in learning how to take a joke. And both decided to tough it out -- because there's a lot of pride and money on the table.

And both are victims of their own success. Natural gas prices are at a ten-year low because fracking promised to goose supplies so much, and make everybody so rich, that energy companies wound up flooding the market with supply -- with predictable results; if El Rushbo had been some guy doing drivetime radio in North Dakota, he'd have been fired instead of getting half the Republican Party mad at him.

For their part, environmentalists are positive they're fighting the good fight. And women, after all, are not widely known for yielding to their softer side if they feel they've been insulted; ask any husband or boyfriend. So neither is much interested in folding their tents, both figure they know who the enemy is, and as far as the environmentalists go, their opposite numbers feel the same way (being male, I don't think it's prudent for me to take this comparison much further).

As far as the gas guys and the rotund one go, they have only so much to say about their futures. Unless utilities start switching to gas generators -- and the Wall Street Journal says they won't -- many of the companies drilling for gas today will either vanish, or wind up owned by China. And if Republican women vote for Obama -- or not at all -- because they're mad at Limbaugh and the Republicans who defended him, El Rushbo's headed for a wonderful career in celebrity golf.

Don't touch that dial.

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