Stanley Fish: The Andes Chronicles: A Ban on Hydraulic Fracturing [fracking]

by Stanley Fish, The New York Times, March 18, 2013

Once 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.

http://opinionator.blogs.nytimes.com/2013/03/18/the-andes-chronicles-a-ban-on-hydraulic-fracturing/