Court Rules That New York Towns Can Ban Fracking

EcoWatch | June 30, 2014 10:47 am 
       

In a precedent-setting case decided today by the New York Court of Appeals, local communities have triumphed over the fracking industry. The court ruled that the towns of Dryden and Middlefield can use local zoning laws to ban heavy industry, including oil and gas production within municipal borders. 

Helen Slottje and Deborah Goldberg stand on the steps of the Court of Appeals
 in Albany on June 3 shortly before oral arguments.
Photo credit: Earthjustice

“Today the Court stood with the people of Dryden and the people of New York to protect their right to self determination. It is clear that people, not corporations, have the right to decide how their community develops,” said Dryden Deputy Supervisor Jason Leifer. “This would not have been possible without the hard work of many of my friends and neighbors and our lawyers Deborah Goldberg of Earthjustice and Mahlon Perkins. Today’s ruling shows all of America that a committed group of citizens and public officials can stand together against fearful odds and successfully defend their homes, their way of life and the environment against those who would harm them all in the name of profit.”

Deborah Goldberg argues before the Court of Appeals on June 3. 

Photo credit: Earthjustice

“This decision by the Court of Appeals has settled the matter once and for all across New York State and has sent a firm message to the oil and gas industry,” said Earthjustice Managing Attorney Deborah Goldberg. “For too long the oil and gas industry has intimidated and abused people, expecting to get away with it. That behavior is finally coming back to haunt them, as communities across the country stand up and say ‘no more.’ Earthjustice is proud to have stood with, and fought on behalf of, one such community.” 

Many other cities and towns in New York have been waiting for today’s decision to establish bans or moratoriums of their own. The victory also gives legal authority to the more than 170 New York municipalities that have passed measures against fracking in their communities. Today’s decision will also serve as inspiration for a growing number of localities in Colorado, Ohio, Texas, Pennsylvania and California that are hoping to stop the controversial drilling practice.

“Town by town, New Yorkers have taken a stand against fracking. Today’s victory confirms that each of these towns is on firm legal ground,” said Helen Slottje, an Ithaca-based attorney whose legal research inspired New York’s local fracking ban groundswell and who was honored with the 2014 Goldman Environmental Prize. “The oil and gas industry tried to take away a fundamental right that pre-dates even the Declaration of Independence: the right of municipalities to regulate local land use. But they failed. The anti-fracking measures passed by Dryden, Middlefield and dozens of other New York municipalities are fully enforceable.”

Residents of Dryden smile, with Helen Slottje and Earthjustice’s Deborah
Goldberg and Kathleen Sutcliffe, after the high court argument in Albany.
Photo credit: Earthjustice

In response to the court’s 5-2 decision, John Armstrong of Frack Action and New Yorkers Against Fracking said, ”We applaud the court for once again affirming the right of New Yorkers to ban fracking and its toxic effects from their communities. As Chief Judge Lippman said, you don’t bulldoze over the voice of the people. But water and air contamination don’t stop at local boundaries, and Governor Cuomo must ban fracking statewide to protect our health and homes from the arrogant and inherently harmful fracking industry.”

The case in Dryden has attracted nation wide attention and taken on special significance. More than 20,000 people from across the country and globe sent messages to the town board, expressing support for the town through the course of its nearly three-year legal battle. An Earthjustice video depicting the town’s fight has garnered more than 80,000 views.

“We did it! This victory is for everyone who loves their town and will fight to the end to protect it,” said Dryden resident Deborah Cipolla-Dennis. “I’m proud of my town and I’m proud of the people in Fort Collins, CO; Denton, TX; Santa Cruz, CA; and all the others who are standing up to the oil and gas industry.” 

Watch the video "Dryden: The Small Town that Changed the Fracking Game" under INTERESTING VIDEOS in the sidebar of this blog.

This story can also be reached at http://ecowatch.com/2014/06/30/new-york-towns-ban-fracking/?utm_source=EcoWatch+List&utm_campaign=fd167ba96c-Top_News_6_28_2014&utm_medium=email&utm_term=0_49c7d43dc9-fd167ba96c-85328537

"Slowly but surely, citizens are claiming their rights to safe and clean environments and communities.  If this can be done in New York, why not in New Brunswick?  Should not our NB towns and villages be able to say NO by means of zoning about how their communities are to be developed?  The citizens of Dryden were told they were wasting their time, but they won in the end.  Two lawsuits have now been filed by citizen groups in NB -  the "Science Suit" against the GNB, and the "Peoples Suit" against the GC, GNB and SWN. You can donate to the Science Suit by going to www.knowshalegasnb.ca or www.noshalegasnb.ca and be part of the change in New Brunswick."  

Richard Lachance, Kent South NO SHALE GAS Kent Sud

NB Anti-Shale Gas Alliance takes province to court to stop shale gas

NB MEDIA CO-OP  ::  Written by Dallas MacQuarrie  ::   June 26, 2014

The threat to the lives of New Brunswickers posed by the development of unconventional shale gas and oil is so great that it is illegal, and the New Brunswick Anti-Shale Gas Alliance (NBASGA) is going to court to prove it.

“We have the science – they don’t!” NBASGA 
spokesperson Jim Emberger publicly challenges
 Energy Minister Craig Leonard to release the 
studies Leonard purportedly has
 showing shale gas is safe. Photo by Janet Hammock.

Armed with a growing number of scientific studies on shale gas and the experience of communities elsewhere with the industry, NBASGA filed a Statement of Claim in Saint John Court of Queen’s Bench on June 23.

The anti-shale gas coalition of more than 20 community groups across the province says that the actions taken by the Government of New Brunswick to develop unconventional shale gas violate their rights to life, liberty and the security of the person as guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms.

It says the right of all people in Canada to the security of their person under Section 7 of the Charter presupposes the right to clean water to drink and air to breathe because both are essential to sustain life.

As well, NBASGA says it will also prove that developing and using shale gas “contributes to climate change and threatens the very existence of the Plaintiffs, their future generations and all New Brunswick people.”  The plaintiffs acting for NBASGA are its chairman Roy Ries and members Carol Ring and Jim Emberger.

The NBASGA lawsuit promises to be a landmark in Canadian jurisprudence.  It is it believed to be the first time a government in Canada has been taken to court on this issue of climate change.  As well, by asking for a moratorium on shale gas until long-term, population-based scientific studies show that it can be done safely, NBASGA is asking the courts to stop a contemplated action before it actually takes place.

“We’re taking the Province to court to protect the lives of people and their families now and in the future,” NBASGA chairman Roy Ries said at a Moncton news conference after the lawsuit was filed in Saint John on June 23.  “The scientific research that has been done to date on shale gas, and the experience of communities elsewhere with the industry, is very alarming,” he said.
“For example, a recent study by scientists from the Colorado School of Public Health and Brown University found that, as the number and nearness of wells to pregnant women’s homes went up, so did the likelihood that their babies would develop congenital heart defects.”  A similar study in Pennsylvania found close exposure to fracking increased the likelihood of low birth weight by more than 50 percent.

“We have science, they don’t”

“There are many such studies documenting the life-threatening health problems and contamination of air, water and land associated with shale gas,” Ries said.  “We will place the best available, peer-reviewed, scientific studies documenting that damage before the courts.”

Answering questions from reporters in Moncton, NBASGA spokesperson Jim Emberger said that “court action to stop shale gas is necessary because the provincial government has ignored the many dire warnings about shale gas from both independent scientists and doctors, including the recent report from The Council of Canadian Academies that said there is no scientific basis for existing shale gas regulations.”

“We have the science, and the government doesn’t,” Emberger declared while challenging New Brunswick Energy Minister Craig Leonard to produce the studies the Alward government claims to have showing that developing shale gas is safe.

The Alward government’s own “scientific report” on shale gas was exposed as a fraud after it was learned the author of that report, Louis Lapierre, did not have the scientific credentials he claimed.  Lapierre has since been stripped of the Order of Canada.

“We have tried every means we can think of to get the provincial government to take the warnings about these very obvious dangers seriously, but those warnings have simply been ignored or dismissed out of hand each and every time,” Emberger said.  “The Canadian Charter of Rights and Freedoms guarantees the right to life and security of the person for everyone in Canada.  Neither governments nor corporations are allowed to violate those guarantees by ignoring threats to them for any purpose.”

“Human Guinea Pigs”

NBASGA spokesperson Denise Melanson says people in shale gas development areas are being used as “human guinea pigs.”  Melanson notes that there are more than 600 chemicals used by the industry, and 90% of those chemicals are known to harm human health.

NBASGA spokesperson Denise Melanson 

says exposing people to New Brunswickers 

to chemicals known to be harmful 

without their informed consent is 

using people as human guineas pigs. 

Photo by Janet Hammock.

“People living near unconventional oil and gas wells are exposed to toxic and cancer-causing chemicals at various times in unknown quantities on an ongoing basis,” she said. “Purposefully exposing people in New Brunswick to hundreds of toxins and cancer-causing chemicals through the water they drink, the air they breathe, and the food they eat without their knowledge is unconscionable.”

“Exposing people to hundreds of chemicals without their informed consent violates the ethical standards governing both scientific and medical testing,” said Melanson.

NBASGA says that until research to establish the true, full and long-term health and environmental effects is actually done, the development of unconventional oil and gas is the equivalent of an uncontrolled experimental study using uninformed human subjects without their consent.

Its Statement of Claim asserts that none of the hundreds of fracking chemicals have been tested to see what their effects are when mixed in the numerous combinations of the fracking process, nor what their effects would be when fracking brings them into contact with the naturally-occurring chemicals (of which many are toxic) located within the earth.

Further, it says that “the health effects of any potentially new chemical combinations that may form under the heat and pressure conditions present during the fracking process have not been tested” and that “there has been neither evidence submitted nor any scientific basis that these new combinations are safe for human exposure.”

“Allowing an uninformed public to be exposed to the harmful chemicals used in extracting unconventional oil and gas stands in stark contrast to the carefully-controlled process governing the approval of even a single pharmaceutical compound for human use,” Melanson said. “The governments of Canada and New Brunswick have established rigorous scientific testing processes to ascertain the safety of chemical compounds like prescription drugs that are intended for human consumption.”

“Yet, in logical opposition to these sensible and universally-accepted safety precautions, the unconventional oil and gas industry will expose New Brunswickers to known toxic and cancer-causing chemicals without any required testing or the knowledge or consent of those exposed to the toxins.”

Anti-shale Gas Group Continues Fight with Industry
Cole Hobson  ::  Times & Transcript  ::  Environment  ::  June 24, 2014

Jim Emberger is a resident of Taymouth, north of Fredericton and has been a vocal spokesman for the New Brunswick Anti-Shale Gas Alliance. He also led the Voice of the People Tour earlier this year and is named as one of the plaintiffs in the recent court filing against the province of New Brunswick, seeking a shale gas moratorium.

Times & Transcript: So you came to rural New Brunswick to hopefully enjoy a quiet retirement, but it seems like it’s been anything but?

Jim Emberger: I think that’s a fair thing to say. I would certainly much rather be doing other things (than shale gas activism). I’m a musician, songwriter and I’d rather be spending time in my studio doing this and also working in my garden that we have here in New Brunswick.

I’m by no means a professional activist, but I have been involved in things that affect my life. I think anyone who is not involved in things that affect their life is missing something. It’s kind of like not living their lives, letting other people make decisions for them.

T&T:  You’ve at times been characterized as one of the main voices of substance in the shale gas debate – with not a lot of information flowing freely from those on the other, pro-side of the debate. Do you feel that’s accurate?

JE:  It certainly evolved I think to being that. I mean obviously there are other forces at play here that agree with our position who aren’t part of the Alliance. We certainly got our first information from the Conservation Council of New Brunswick and it’s been a staunch ally through all this. The Council of Canadians and most of the mainstream environmental groups have had a voice. For a while all those voices came together in what was once a larger but looser – I wouldn’t say alliance – coalition, of like-minded organizations a couple years back under the New Brunswick Environmental Network, which hosts different kinds of forums.

They had a shale gas forum, we all got together as very different organizations and then people went their own way. The core group of about 22 community organizations (that comprise NBASGA) were more centered on this single issue.

Obviously people like Conservation Council have many issues that they are dealing with, so I think we remained as maybe the major shale gas voice because it’s our only issue.

T&T: If you’ve been called the face of the anti-shale gas movement, who do you think is the face of the pro-shale gas movement in New Brunswick?

JE:  To this point as far as I can tell, the government. I would say (Energy and Mines Minister) Craig Leonard and then a few people in the business community who obviously have financial gain to be made from doing this.

That’s all that springs to mind. There are some small pro-shale gas groups out there, they have a Facebook site, but I’m really not well acquainted with anybody for any group that has come across a knowledgeable spokesman for their point of view. I think it’s mostly coming from government and industry.

T&T:  Is it fair to label you as totally anti-development?

JE:  I’m all for the development of solar, wind, tidal energy, clean energy economies. I’m totally for the development of an industry here in New Brunswick that would start doing the retrofitting of homes and businesses and infrastructure to fight climate change.

We are going to have to use less fossil fuel energy whether we have climate change or not ... I’m only anti things that basically cause more harm than good ... I’m in favour of the development in New Brunswick of a local agriculture economy which is something we could also do in a heartbeat with some direction from the government to do the right kind of incentives. I’m in favour of a development of a sensible forest industry and not just cutting down all our trees to pulp them and send them off somewhere else.

There are all kinds of opportunities in New Brunswick if everybody could just get out of the mindset of 200 years of resource extraction.

T&T:  Put more aptly, is it fair to label you as totally anti-development of shale gas, no matter what safeties or measures are in place?

JE:  I have no problem saying that I’m totally opposed to that ... Like many people I have had an interest in energy issues for a long time, as I once worked in the energy industry. From my point of view and that of many people who are environmentally concerned, one of the things we said back in 2000 or thereabouts when (shale gas) first came on to the news that there was this new way to get natural gas, we thought, well that’s a great thing because that means we can close down the coal-fired power plants that are really awful polluters and get natural gas, which burns clean.

It’s only when we started finding out later how the process works to get this stuff out of the ground and how much environmental destruction it causes on its own, plus the fact they lose so much of the produced methane to the atmosphere – in terms of global warming it makes it worse than coal.

Then when you start adding that in, it became, let’s slow down, maybe this isn’t such a good idea. We started doing our research and the more we know about it, the less we like it. It wasn’t an idea of ‘it’s a new energy source, we hate it.’ Just the opposite, this has been an evolution of learning from the science.

T&T:  So do you feel there is absolutely no safe way to safely extract shale gas? Or do you more take issue with the methods used by the industry?

JE:  The way they do it now is pretty much the only way it can be done, that’s the reason why we’ve never mined shale gas until the last 10 years, because it’s extremely difficult to get out, it’s trapped in rock, there was no good way to do it. The current way is a good way to do it technically, they can get the gas out, but ... all the things you know that are bad about the industry are also the only ways you can do it.

If they could come up with some new way to get shale gas out of the ground safely without polluting the environment or making people sick and if that gas was then used to replace coal burning power plants and nothing else, then I’d say it may be good. But in the long term, we shouldn’t be producing any new fossil fuels, whether clean-burning or not, because as the scientists say, we need to leave 75, 80 per cent of all the fossil fuels we know exist in the ground, because every bit more of carbon dioxide or methane we add to the atmosphere pushes it further down the road to climate change. It’s already irreversible.

It’s the old metaphor of the big ship moving at sea, even if you put on the brakes, it goes on for a long time before it stops. What (climate change) we have now is based on the stuff we put in the atmosphere 40 years ago, we can’t just say we’re going to slow down a little bit, we need to slow down significantly and find other ways to power our civilization.

T&T:  Is your background in the oil and gas industry (as a regulatory officer for the Federal Energy Administration, a government organization created to address the 1973 oil crisis) what spurred you on to go forward with this lawsuit?

JE:  My experience was back in the 1970s during the oil crisis when there was the oil embargo and the wars in the Middle East ... That gave me a familiarity with the oil industry and how it works in general and what its bottom line is ... and also how regulations of any kind are rarely effective. Let’s just say I have little faith in the regulatory process for any extraction industry anywhere in the world right now, because first-hand I could see how the money and power of these industries basically corrupted any regulatory agency that was set up to deal with them.

In that sense I guess you could say that led me to the idea we need to actually get to the courts, because there is this history of regulatory agencies not being able to have any meaningful regulatory control of the industry that they are designed to watch over.

T&T:  The anti-shale gas movement may have gotten a bad name this summer in Rexton with reports of illegal activity, arrests and violence that erupted. Your approach to this whole thing has been different, as you’ve focused more on trying to pass on information through the Voice of the People tour and researching scientific studies, as opposed to standing on the side of a highway with a sign, blocking trucks and other such activities. Do you feel this is a more intelligent and focused way to approach things?

JE:  We’d like to believe that people of reason can examine the evidence and come to the right conclusion and that’s where we have been from the beginning as an organization. But when we say peaceful, we consider protesting and carrying signs and waving signs as peaceful. People who are willing to partake in civil disobedience also follow a long-held historical method of peaceful resistance and so we weren’t out there endorsing that as an organization, but we have no problem with that. It’s an individual decision.

You grab 100 people from the street and it’s just human nature you are going to get a few of them who are hot heads and who aren’t happy, especially angry young men with a lot of testosterone going who have legitimate grievances. We have to remember that for four years this has been going on peacefully.

But when large scale industrial activity is taking place, the people who were opposed to it felt like they weren’t getting heard, and when people get pushed, they push back. I’m not defending any type of violence. You can’t characterize a movement that way, but every movement has those characteristics in it. I don’t care whether it’s anti-war protest or the protest against the G7 or civil rights protests, there are always some people who will be violent ... Yet virtually every news story whether it’s the paper, the TV, the radio, you name it, at the end of the page there’s always a reference to Oct. 17, things at Rexton.

We’re talking about peacefully going to court, doing scientific things and (the media) keeps bringing up the fact that there were violent demonstrations, even though we had nothing to do with the violence. There is a characteristic too of it not being one big unified thing in position, that is people oppose it for different reasons that overlap and they also have different stakes in the matter ... It’s way too nuanced, I think, to talk about ‘well, these people are good protesters, and these people are bad protesters.’

T&T:  I notice the NBASGA lawyer, Larry Kowalchuk, is from Saskatchewan. How did he get involved in this case?

JE:  There are not a lot of lawyers in New Brunswick with a lot of environmental background, there hasn’t been a lot of environmental law done in New Brunswick and this was actually going beyond that. The way we’re approaching this is beyond a simple, ‘they are breaking this environmental law.’

The entire context of our suit has to do with our rights as citizens to have a say in things that will be detrimental to our lives.

So we heard of Mr. Kowalchuk and we checked him out through both public and private sources and found out that he was of like mind on the issues, he wasn’t just there as a hired gun lawyer and he has had success in arguing similar kinds of constitutional cases and at Appeals Court and Supreme Court level. We spoke to him and he was interested in taking up this cause, so it was just like a good fit ... We were mostly looking for someone who had the track record and who also had similar outlook on the world as we do.

T&T:  It seems it’s pretty easy for those who support the industry to ignore a protester with a sign on the highway, but it’s not so easy to ignore a court action, is that why this avenue was taken?

JE:  Exactly. Two things, the main thing, as you say, it can’t be ignored. There’s going to have to be a judgement, a ruling, and they’re going to have to be aware of all the evidence, so at least it’s out there. If we hear all the evidence and the people hear it during the court case and they still believe it’s safe, then at least they have heard all the evidence.

But the second thing is, I think right now it’s also important that this be done in the relatively neutral realm of the judicial system where hopefully there will be a minimal opportunity to spin the message and the information, and it takes it out of the hands of politicians.

We would love to have a political party get elected this September, which on their own says ‘we are going to put a moratorium in place.’ Actions on a moratorium don’t have to be mutually exclusive. We’re happy with that happening, but at the same time we don’t want it to be a case of, well, the next administration that comes in suddenly has a change of heart because there’s some money being thrown around, they say maybe we lift that moratorium.

We want it to come from a source, and have an action taken, that actually can be long-term and do what it’s supposed to do, which is to allow all the research to be done before making decisions.

23/JUNE/2014 - NBASGA FILES STATEMENT OF CLAIM WITH COURT OF QUEEN'S BENCH

June 23 will be remembered as an historic day for the citizens of New Brunswick and perhaps of the world.  NBASGA held a press conference at the Capital Theatre in Moncton to announce that it has filed a Statement of Claim in the Court of Queen's Bench in Saint John against the Government of New Brunswick.  

The link to the full text of the NBASGA Statement of Claim and also located in the "INTERESTING RESOURCES" sidebar on the right.

Rather than repeat what was said at the press conference, I am inserting the comments made by Roy Ries, president of NBASGA.

"Good morning everyone, and welcome to a historic day for the people of New Brunswick.

Earlier this morning, NBASGA formally filed a Statement of Claim against the Province of New Brunswick in Court of Queens’ Bench.

We are asking the courts to place a moratorium on the development of unconventional shale gas and oil in our province until such time as long-term, population-based scientific studies demonstrate that it can be done safely.

The three plaintiffs acting for NBASGA in this action are Roy Ries, Jim Emberger, and Carol Ring.  

NBASGA did not take the decision to launch court action lightly, but we were given no choice.

For more than three years, we have been desperately trying to get the provincial government to listen to the independent scientists and doctors sounding the alarm about this industry.

And we have documented the massive opposition to such development by the people affected.

Nothing has worked.

Four years ago the Alward government’s decision to develop shale gas was announced as a fait accompli.

Since then, it has ignored and dismissed out of hand the growing mountain of scientific evidence about the threat posed by the industry.

In short, our choice was between turning a blind eye to life-threatening activities authorized by the provincial government or doing our utmost to protect the lives of people here today and our children and grandchildren tomorrow.

Well, that’s no choice at all, and, after four years of trying every peaceful means possible to communicate the dangers of this industry to the government, we find ourselves here today.

There is simply no way to develop shale gas in New Brunswick using current technologies without needlessly jeopardizing people’s lives.

NBASGA will provide the Court with the independent, peer-reviewed scientific studies and research documenting the potentially catastrophic threat to human life and the environment posed by developing unconventional shale gas and oil deposits.

We will document the damage to health and the many illnesses associated with the industry, including cancer in adults and congenital heart defects and low birth weights for babies born near shale gas wells.

We will also document the life-threatening contamination of air, water, and land associated with the development of shale gas using current technologies. 

Our water, air and land are the sources of life on the planet. We will document that the unconventional oil and gas industry is also a threat to the very planet itself through its acceleration of climate change.

The notion that we should sacrifice the very water, air and land needed to sustain life itself in order to create a few short-term, unsustainable jobs is madness. 

NBASGA cannot stand idly by while the very font of life that sustains us all is threatened with destruction.

We have been referring to our legal action as ‘The Science Suit,’ and that is a very succinct summary of NBASGA’s approach: we will be asking the court to make its decision on the basis of science.

To date, the scientific studies that have been done show that the activities, processes and technologies used by the shale gas industry are so dangerous that they violate the constitutional right of all New Brunswickers – indeed all Canadians – to security of the person guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms.

I note that the security of the person protected by Section 7 of the Charter includes the right of all Canadians to health and to clean drinking water.

It is our position that the Government of New Brunswick cannot legally take decisions that needlessly threaten the life and health of its citizens by allowing the water they depend on to drink or the air they depend on to breathe to be so polluted as to be incapable of sustaining life.

A new day is dawning in New Brunswick.

A new day where the protection of our families, our neighbors and our communities is more important than private, partisan agendas.

We all share a moral obligation to do our utmost to ensure that generations not-yet-born will also have clean air to breathe and fresh water to drink.

The air, water and land that sustain all life are a common heritage that every generation holds in trust for future generations.

The heritage of life that our air, land and water represent for all generations is not ours to despoil and ruin.

We welcome your questions. Ms. Melanson and Mr. Emberger will respond to questions regarding the scientific evidence – in either French or English. And any questions you have regarding legal aspects will be answered by Mr. Kowalchuk [NBASGA legal representation}."

Roy Ries
NBASGA, President



NBASGA realizes that this will be a long struggle.  You can be part of that struggle by supporting the NB Water First Legal Fund that has made this action possible.  You can make a PayPal donation, no matter how small or large, by going to www.knowshalegasnb.ca or by mailing your donations to NB Water First Inc., PO Box 4526, Rothesay NB E2E 1A0.  Together we can be heard.

For further information concerning the work being done by the New Brunswick Anti-Shale Gas Alliance, we invite you to our website at www.NoShaleGasNB.ca