JLCNY: A Declaration of Landowner Rights

Pro-drilling Upstate landowners organized as the Joint Landowners Coalition of New York (JLCNY) garnered significant media coverage May 9, through an enviro-style press conference — joined by a sadly small number of supportive politicians — and release of a "Declaration of Landowner Rights" (full text below).

This has led to a lot of back-handedly skeptical headlines, like these:  "Pro-frackers: Development is a landowner's right" (Albany Times Union); "NY landowners assert right to frack for gas" (Business Week); "Landowners defend 'rights' to develop gas" (YNN Hudson Valley); and "Landowners assert right to allow fracking" (Newsday).

Love the Air Quotes around the word "rights" in one of those.  And also the word "assert," reached for by more than one headline writer.  (If they said "re-assert," that would have at least had the advantage of making me smile.  And, yes, I'm still waiting to see a headline reading, "Women assert 'rights' to equal opportunity.")

I don't know how to break this to you, but it turns out the existence of property rights is now an open question hereabouts — at least if your jury pool is limited to the Northeastern U.S. urbanites and suburbanites who make a living within media outlets keeping such questions exposed to chronic, dramatic conflict.  Clearly these people have not absorbed much American history, or come to understand that private ownership of real estate is fundamental to even what's left of our quasi-capitalist economy.

Instead, in New York, the freedom of developmental activity long protected and encouraged by the American system of private land ownership — whether it's growing corn, spreading manure, raising alpacas, personal privacy, putting in some geothermal, cutting timber, setting up a daycare center, or temporarily hosting a drilling rig on your Back Forty — garners reflexively snarky dismissiveness.  The new assumption is that virtually everything is and should be subject to a bitter referendum among neighbors near and far.

Why? 

And why is this a good thing?

Yes, of course, we regulate private activity.  That's what the NYS DEC aims to do with its draft shale gas operational rules — grounded by the public interest in empowering professionals to surgically minimize realistic impacts, even if it costs the private sector more.

But — for drilling opponents and their media sympathizers — the fight in New York is no longer about regulation of private development.  It's about assuming there is no longer any meaningful right to private property.  Most of the town bans and moratoriums have "asserted" the local public's "right" to outlaw all oil and gas development, by lumping it together with all heavy industry — even though the first is a temporary, largely rural operation, and the second is a permanent, largely urban/industrial occupancy.  It's not zoning, which could be workable if reasonably designed; it's zoning out.  Even drilling your grandfather's gas well would today be outlawed in places like Dryden or Middlefield, so long as these freakout-inspired measures are left to stand.

I say we should be careful what we give up, when we let that happen.

By my Google-News-enhanced reckoning, only one outlet region-wide bothered to run JLCNY's statement in full: the Albany Times Union's Capital Confidential blog.

That's a shame.  This is a helluva text.  Here it is:

Many New York state residents hold valuable mineral rights, including rights to natural gas deposits in the Marcellus and Utica shale formations.  The right to develop one's property is beholden to the individual and is a fundamental tenet of rights afforded us under the Constitution.  As founding father John Adams asserted, "No part of the property can, with justice, be taken from him, or applied to public uses, without his own consent."  The state's current hold on permits for high volume horizontal hydraulic fracturing — a technique used to develop natural gas trapped in shale — has severely restricted the rights of property owners to sell, lease, and profit from mineral ownership.

We, as residents, taxpayers, and property owners of New York State, have set forth the following "Declaration of Principles" to reclaim ownership of our property and make our voice heard as New York finalizes a plan for allowing shale development that protects our environment and benefits our communities.

Be it resolved, that all New York property owners have a right to:

   •   Timely development of private property.  State officials must pursue the timely adoption and implementation of sensible development rules.  The delays have potentially cost property owners millions of dollars in lease payments and lost income from development of their resources contributing to further direct hardship for many families.

   •   Reasonable and timely expansion of permitted development areas.  Restrictions on development should reflect a sound scientific basis and a legitimate regulatory concern.  Natural gas drilling can be conducted in a safe and responsible manner when consistently regulated under guidelines based on sound science.  We have confidence that after over four years of thorough investigation, New York officials will finalize guidelines that allow permitting of safe development to proceed.

   •   A uniform standard for natural gas development.  There must be uniform standards for natural gas development implemented by knowledgeable, trained state regulators.  New York's system cannot be distorted by a confusing legal patchwork that impedes private property rights, hinders progress and limits viable economic opportunity.

Local moratoriums are graying the lines of where and what types of mineral development will be allowed.  Legislation has even been proposed that would allow local municipalities to pass additional regulations potentially at odds with state rules.  These are not sound governing principles and impede positive economic opportunities.

Redundant and overlapping authority among local governments, state officials, and regional or federal bodies has created a scenario in which the absence of clear authority reduces the potential for economic benefits.  Left unaddressed, the current legal uncertainty in New York will continue to impede safe development and take property rights of landowners.  These impediments to reasonable development of private property and economic liberties cannot be allowed to stand in direct conflict with our protected rights.

   •   Right to pursue economic opportunities for all citizens of our communities.  Landowners inherently are the best environmental and economic stewards of our assets.  We stand for protection of our rights, including the protection our land, its natural resources, the surrounding environment and our communities' interests.  It has been proven that job creation, not only in gas development, but in a broad array of locally based businesses has followed the safe development of shale gas.  Further, that landowners can structure agreements under clear regulatory guidelines that preserve our property rights, minimize land disruption and protect our air and water.

   •   Transparency and disclosure by well operators.  Industry and regulators alike should disclose all information necessary about activity related to our land and minerals to assure and protect the public.

For industry, that means disclosure of all additives used in the hydraulic fracturing process and the results of water testing near wells, in accordance with state law.

   •   Reasonable protections of our land and water through flexibility in locating wells and well pads.  Setbacks from waterways, water wells, and flood plains are reasonable environmental considerations.  Landowners want to protect their environment and their communities.  Limitations must achieve a commercially viable balance and be based solely on sound science and best practices that reasonably mitigate potential impacts.

Arbitrary setbacks and excessive regulations serve no public interest.  Overly restrictive setbacks amount to a taking of private property rights and a ban on development.  Where setbacks do not halt development outright, they severely limit landowners' ability to negotiate or dictate the location of well pads on their own property.  The adoption of any setbacks by state guidelines should include a sunset clause for their expiration after a reasonable period of time with development occurring free of major incidents of contamination.

Property owners deserve the flexibility to negotiate their own commercially reasonable terms with gas developers that protect the best interests of their land.  Reasonable flexibility in situating well pads benefits property owners, neighbors, and communities alike.

The basic property rights outlined above will be the standard by which our 70,000 members measure the success of state officials in balancing the rights of property owners with legitimate issues of public concern.

We further encourage our membership, families and businesses in our communities to hold local and state elected officials accountable to these principles by supporting property rights advocates for elected office.