Following are two articles on how the little Catskills town of Andes, NY passed a ban on Hydraulic Fracturing. Both articles by Stanley Fish appeared in the Times Opinionator.
Looking for Gas in All the Wrong Places
By STANLEY FISH
Stanley Fish on education, law and society.
It was a big week in Andes, N.Y. Last Thursday, the New York Post devoted a full page to the small Catskill village, describing in some detail the Andes Hotel, the surrounding “rolling corn and hay fields,” the affordable housing, the Hunting Tavern Museum, the country store, the coffee shop, the tea shop, the farmer’s market, the art galleries and antique stores, the occasional celebrity resident, the extraordinary natural beauty — everything that led the Post, in an earlier article about great day-trip destinations, to dub Andes Woodstock-as-it-used-to-be.
And then, the very next evening, there was another event that provided an ironic counterpoint to that summer valentine. One hundred sixty Andeans, including the town supervisor, members of the town board and candidates running for a seat on the board, met in the school gym to hear a presentation on the geology of hydraulic fracturing, or “fracking” (the process of extracting natural gas by blasting underground rock formations with a huge volume of chemical-laced water pumped down at very high levels of pressure) and to express their views about what fracking would mean if it came to the town.
The first thing to say is that 160 is an enormous number given that the town’s population is 1,600 and residents weren’t given much notice of the meeting. Were a corresponding percentage of New Yorkers to turn up at a public hearing, there would be no place large enough to hold the more than 800,000 attendees. The second thing to say is that many stayed for the entire three hours and 40 minutes, the length of a short Wagner opera.
The first hour and a quarter was taken up by a sober, pretty much even-handed, explanation of the hydraulics of fracking, the locations in New York of the most promising sites for drilling, the effects on the landscape, the dangers of leakage, explosions, contamination and discharge of radiation, the available methods for containing or mitigating these dangers and the effectiveness (not yet very great) of those methods. As a life-long academic, I was amazed at the sustained and respectful attention of the audience members, many of whom (it turned out) already knew most of what they were being told. It is a rule in my profession that if you talk longer than 50 minutes you will lose your audience. On this occasion, the patience displayed was extraordinary and it extended into the question and answer period, which lasted another 75 minutes.
Then came the evening’s centerpiece, three-minute prepared statements delivered by townspeople who had signed up in advance. It is often said that the opponents of fracking are mostly second-home-owners and weekenders who selfishly prefer their enjoyment of a bucolic landscape to the needs of the long-termers who came before them. But the speakers who stood up to have their say represented every sector of the population — farmers, small-business owners, real estate agents, six-generation natives, newcomers, artists, musicians.
As different as they were, the message was the same and it was eloquently proclaimed: “What we have here is unique and beautiful.” “We have to take action to keep the town we love.” “We must take our destiny into our own hands.” “Andes could become the model for the country.” One of the speakers was a local and a folksinger. She made up a song on the spot and taught it to everyone. The refrain was “If we work together / Then we can make it better.”
Interspersed with the expressions of love, hope and resolution were substantive points of anxiety. No one knows how much contaminated water will escape and where it will go. Even if we stop it here other towns might surrender and we could see a truck kicking up dust and leaking sand every 60 seconds, seven days a week. The noise level will make conversation impossible; no more sitting on the porch of the hotel or the coffee shop. Property values will plummet by 50 to 75 percent (this from a long-time Realtor). Banks are reluctant to write mortgages on property that is being drilled on. There might be limited short-term benefits to a few, but the boom will be followed by a bust, and when it is all over “people won’t want to live here anymore.”
There was agreement that regulation wasn’t the answer, first because no regulation could prevent the disasters that come along inevitably with a project this large, and second because the state couldn’t be counted on either to pass or enforce regulations: “I can’t trust an industry that has got itself exempted from the air and clean water act.” The position that emerged at the end of the evening was simple and unequivocal: “You can’t regulate them but you can ban them if you are sophisticated enough legally and if you remain strong and stay the course.” Every statement was greeted with loud applause. One speaker called for a straw poll. “Anyone in favor of fracking?” Not a hand was raised.
“Inspiring” is not a word I usually use, but this evening was inspiring. The devotion to community, the civic-mindedness, the sheer intelligence displayed by everyone who spoke was a more powerful argument for coming to Andes than the beauties and attractions listed by the Post. But the argument will come to nothing, and everything the Post celebrates will be no more, if the rural birthright of Andes is sold for a mess of fracking.
The Andes Chronicles: A Ban on Hydraulic Fracturing
By STANLEY FISHStanley Fish on education, law and society.
Once or twice a year I bring news from the small Catskills town of Andes, and usually the news concerns the ongoing battle to preserve the town’s rural character in the face of incursions from entrepreneurial energy companies. A few years back Andes passed an ordinance banning wind turbines. Late last month the town board passed a law prohibiting heavy industry. The intended target of the law was hydraulic fracturing, or fracking, the technique by which natural gas is extracted from underground rock formations that have been subjected to the high velocity impact of chemically laced water.
But, at the direction no doubt of the town’s lawyer, the law’s purpose as stated is more general — “to promote the protection, order, conduct, safety, health, and well-being of Andes and the lands which lie within the Town’s borders.”
That, however, is only the initial statement of purpose. Three more follow immediately: “It is the purpose of this Local Law to protect and enhance the Town’s physical, residential, and visual environment.” “It is the purpose of this law to respond to the legitimate concerns of the citizens of the Town about the potential for heavy industrial use which is inconsistent with the rural character, topography, and the water sources in the Town.” “It is the purpose of this Local Law to uphold the Town of Andes Comprehensive Plan.”
Now what potential hazard inconsistent with rural life could they be talking about? Further clues, if you needed them, are provided by a summary of the Comprehensive Plan’s “key principles,” which include maintaining the character of rural roads, protecting aquifers, protecting public water supplies, protecting streams and streamside vegetation, reducing traffic impacts, protecting historic resources and landscapes, and ensuring that economic development is not “at cross purposes with agriculture and farmland protection efforts.”
Hydraulic fracturing has not yet been mentioned, but quite obviously the long list of dangers to be avoided coincides with the dangers cited by its opponents. Lest there be any doubt, the list is followed by a fifth statement of purpose: “Further, it is the purpose of this Local Law to control those activities related [to] heavy industry, as defined herein, which may impact wetlands, lakes, streams, groundwater resources, public drinking supplies, public roads, scenic landscapes, agriculture, small town character, and the area’s tourism and recreational-based economy.”
Finally, in section 2.2, “Specific Terms,” fracking is named and defined, but only as the fifth item in a long lexicon: “‘Natural Gas Exploration, Extraction, or Processing’ means the exploration for natural gas, the extraction of natural gas from the ground regardless of the extraction method used, and/or the processing of natural gas.”
But this definition is not comprehensive enough and is supplemented by a litany of examples it is intended to include; and then that litany is itself supplemented by an omnibus disclaimer: “It is expressly stated that the foregoing examples are not intended to be exhaustive [and] shall not be construed to limit the application, scope or application of this definition or to limit the application of this definition solely to those activities identified in the examples.”
Now, I know that this pattern of insistent, circular, hammer-like, repetition is dictated by a legal concern to avoid the drafting pitfalls of “overinclusion” — crafting a regulation that can be interpreted as sweeping into its ambit more than it is intended to cover — and “underinclusion” — crafting a regulation that can be interpreted as omitting a significant aspect of what it is intended to cover. But I can’t help reading the document as an imitation in words of the physical act it is trying to prevent: fracking is being pummeled on all sides and from every direction; the assault on it is relentless; the target cannot escape; it will be overwhelmed and drowned; the intention, like the intention of the physical process, is to smash it into bits. Take that, fracking!
Behind the words, of course, are the people of Andes who, as I reported in an earlier column, have been debating this issue and holding hearings on it for a while. The effort leading to the ban was organized by a grass-roots citizens group that calls itself “Andes Works!”. (Its Web site offers tips to other communities that might want to follow Andes’s example.) No doubt some in the community were pro-fracking, but their voices were not raised. The town supervisor, Marty Donnelly, told me that he expected an outcry when the law was passed (by a unanimous vote of those present), but he got only one call. Wayland “Bud” Gladstone, a farmer and member of the board who ran on an anti-fracking platform, said that, to his surprise, he hasn’t heard one negative comment. (That would be a miracle in a community of two, never mind 1,400.)
Donnelly observed that if fracking were to come and one mistake was made, “it can’t be taken back.” Gladstone remarked that while there might be some short-term gain for a few, there would be long-term suffering for many. He added that the law was “the right way to go” and Donnelly echoed him: “I wanted to be on the side of right.” How about that? Makes you almost believe in democracy.