Cuomo's Lost Credibility Triggers Seismic Shift Within Upstate Landowner Leadership

An announcement posted late last night by leaders of the top pro-drilling coalition of Upstate New York landowners represents a seismic shift that's been a surprisingly slow, five years in the making.

Here are the words that make it so:

On February 8, 2013, the Joint Landowners Coalition of New York announced that it has been laying the ground work for a lawsuit against New York State for a taking of our property rights under the United States and New York Constitutions. The JLCNY is now seeking landowner candidates to serve as plaintiffs in the action.

The JLCNY believes that New York has no intention of ever completing the SGEIS or the regulations for high volume hydraulic fracturing. After 4 ½ years, today marks another deadline missed by NY - the date to complete the HVHF regulations.

NY is clearly acting in bad faith.  Ohio completed its HVHF regulations in 8 months.  This week Illinois introduced House Bill 2615 — the Illinois Hydraulic Fracturing Regulatory Act—after a 14-month bi-partisan effort that involved the Attorney General’s Office, environmental groups (NRDC and the Sierra Club), industry leaders and state legislators. Illinois Governor Pat Quinn praised the bill saying it will help his state’s economy. Ironically, the “New Albany” Shale is Illinois’ target formation but it’s business as usual in Albany, NY where our leaders continue to make a mockery of the regulatory process.

President Obama said in his state of the Union address: “After years of talking about it, we are finally poised to control our own energy future. We produce more oil at home than we have in 15 years. We have doubled the distance our cars will go on a gallon of gas, and the amount of renewable energy we generate from sources like wind and solar – with tens of thousands of good, American jobs to show for it. We produce more natural gas than ever before – and nearly everyone’s energy bill is lower because of it. And over the last four years, our emissions of the dangerous carbon pollution that threatens our planet have actually fallen.

Last week New York City Mayor Michael Bloomberg said: "It is up to the governor, but I personally have said we should be fracking, not in the watershed, but we should be fracking. … About 13,000 people get killed every year by the pollutants from coal-fired plants. … [Also, as] Boone alluded to, getting oil from outside this country is expensive and it transfers our wealth to people who are trying to destroy our lives. … Of all the things we can do, natural gas isn't perfect, but it certainly looks like it can make this country energy-independent and reduce dramatically the pollutants going into the air," Bloomberg said.

On February 12, 2013, DOH Commissioner Shah perpetuated the state’s bad faith conduct by suggesting that he would review two health studies that had not yet been started or funded. News of DOH’s inability to complete its work on the latest health review came even though it was revealed that its advisory panel completed its work months earlier and that last year, DOH conducted a health review and found that there are no health impacts from HVHF.

While our nation’s leaders bring us closer than ever to achieving energy independence, cleaner air and economic prosperity, NY threatens to impede our progress and deny the constitutionally guaranteed rights of NY landowners.

The lawsuit against the state will focus on claims where the failure to grant HVHF permits has deprived landowners of all economically viable uses of their real property or interfered with reasonable investment-backed expectations.

The JLCNY's old tactic was to counsel patience and diplomacy among many of its angry members, naively choosing to trust that Gov. Cuomo would be true to his word — that the facts and the science of regulated shale gas development would trump ideology, emotion, and endless, provincial, bad press.

Now the leaders simply don't believe Cuomo anymore, a loss of trust that's painful to see, if only for its slowness to dawn.

The JLCNY's old tactic was to internally pooh-pooh the chances of a legal "takings" argument by landowners on two grounds:  One, that the state hadn't yet finished the process of stripping away their private property rights, and, two, that the U.S. Supreme Court had already turned its back on the partial stripping away of private property rights by governmental police power.

Now the leaders have come to understand that they must use all arenas to make their persuasive case, even arenas where they're likely doomed to fail, or mostly fail, in the end.

You ask me, should have been done long ago.

The bottom line is that Upstate landowners — even as a voting minority — own something of great, previously unforeseen value.  Something that has simply been taken away by New York State's inability to govern itself. 

It is only private property in its narrowest sense.  You can measure the value of that private property in straight dollars, beneficial technological evolution, the proceeds of an invisible hand, economic opportunity, the individual freedom to choose a plan and work toward it, or simply broad hope. 

You want to raise cows, chickens, or alpacas?  You do it.  You want to convert your house to geothermal?  You do it.  You want to arrange to have some trees cut for lumber?  You do it.  You want to invent the iPod?  You do it. 

You want to make a deal with the technologists to produce the natural gas that's consumed without question in Ithaca, or Hamilton, or New York City?

When the freedom to act on one's private interests is completely taken away by the power or the incapacity of government, it's no different than a street riot, mob rule, or a coup by self-dealing factions.

It is an injustice forbidden, from the beginning, by the American system.

What are the ground rules of the American system? 

What were the ground rules? 

And what do you stupidly and unwittingly give up when you work overtime, as part of that righteous mob, to toss them out?

Upstate New York's private, land-owning interests ask only for tolerance and respect, as they try to do their thing within a regulated system.  I don't think it's too much to ask, and I'm glad there's still somebody left in this country asking it.

Post script:  For landowners to make their full "takings" case, there really should be a companion lawsuit filed by Wayne County, PA property owners against the Delaware River Basin Commission.  There's a parallel, perpetual moratorium going on there in which the incapacity of this particular branch of government to do the job it asserts for itself winds up unlawfully and unjustly taking away private property without any compensation.  The main difference in going up against the DRBC would be the possibility that the Commonwealth of Pennsylvania, a member of the DRBC, might well be pressed into formally taking sides.