12:55pm

Tue June 5, 2012
Marcellus Shale

Can two Ithaca lawyers keep fracking out of New York state?

The fate of hydraulic fracturing in New York is still being determined by state regulators.

But that doesn’t mean municipalities aren’t taking action.

There are about 100 towns in New York that have passed laws either banning hydraulic fracturing or oil and gas operations altogether. Most of the bans are temporary, about 20 are permanent.

The driving force behind those bans: two Ithaca lawyers, Helen and David Slottje.

Escaping the big city

Before moving to Ithaca in 1999, the Slottjes were real estate lawyers at a firm in Boston. Helen says the couple moved to upstate New York to get away from the world of corporate law.

“You know, bucolic upstate New York,” Helen Slottje says. “A switch from big city corporate practice to sort of small town, nice, bucolic existence.”

But slowly she and David got pulled into a more hectic world - the world of local people opposed to hydraulic fracturing.

It all started when the Slottjes went looking for a farmhouse for David’s brother. Everywhere they went, landowners had leased their mineral rights to oil and gas companies.

“And the real estate brokers were like, ‘Oh, don’t worry, everyone around here has got a gas lease. It’s really nothing to worry about,’ ” says Helen Slottje. “And David, having practiced law in Texas, was like, ‘There’s no such thing as an insignificant-don’t-worry-about-it gas lease.’ ”

So they started worrying about it.

Getting involved

Helen Slottje joined an e-mail list of people organizing against fracking in New York. In 2009, she took up a fight against an industry project in Chemung County. Then, in 2010, she started working with the Tompkins County Council of Governments as it prepared for drilling in the area.

At the time, municipal governments were grappling with ways to regulate what was thought to be an impending gas boom, says Slottje.

“The real focus was on lighting or noise laws or dust laws,” she says. “But a very important part of that question [soon became]: What does ‘regulate’ mean?”

Under New York law, the state Department of Environmental Conservation is given the sole authority to regulate the oil and gas industry, with only a few exceptions. That means towns can’t say how the industry operates within their borders. That power resides with the state.

The rationale behind the law is to make things easier for industry by avoiding a patchwork of local regulations. So the Slottjes figured that towns could adopt a single law - in the form of a ban - and get around that problem.

“And this seemed so crazy of an idea,” Slottje recalls. “Instead of trying to run around to figure out whether your noise law was going to apply or your lighting law was going to apply, you could just prohibit this altogether.”

Spreading the bans

When the Slottjes realized that was the course to take, they wrote model zoning laws that have spread across upstate New York.

The couple worked pro-bono, making it possible for cash strapped small towns to consider the drilling ban.

In the first town the Slottjes worked with, the process took six months.

“Lawyers often work only when people are paying them,” says Helen Slottje. “A town doesn’t go and spend a ton of time trying to figure out the answer to a question that nobody is paying you to answer.”

Ever since two county courts in the state upheld local bans, Slottje says she’s been getting calls every day from towns looking for help.

The work no longer takes six months. But for each of the 80 or so towns they’ve worked with, they go through local zoning codes and master plans. The Slottjes then draft laws including the proposed zoning changes.

When invited, they also speak at town board meetings.

“They schedule town boards on Saturdays and Sundays now, special meetings so they can get us,” says Helen Slottje. “So we work seven days a week. We might have taken a day or two off over the past year.”

Mounting opposition

The small Tompkins County town of Ulysses was the first municipality the Slottjes worked with. Shortly thereafter, the nearby town of Dryden passed its own ban. Dryden was then sued by a natural gas company, Anschutz Exploration, which held drilling leases there.      

As the bans moved from Tompkins County to other counties across the state, the Slottjes followed.

Soon, wherever the lawyers went, proponents of gas drilling were there too.

Tom Shepstone is the Marcellus campaign director for the industry-funded website Energy in Depth. He criticizes the Slottjes for saying they work pro-bono when their non-profit, Community Environmental Defense Council, receives grant money.

“Suppose that we marched into a community and said, ‘We’re going to help you write a law that provides for natural gas drilling throughout your community,’ ” says Shepstone. “‘And we’re going to do it on a pro-bono basis.’ Everybody would look at us and say, ‘What? Are you kidding?’ ”

Shepstone says he’s open about the fact that he works for gas companies. He says the Slottjes should be more open about the money they’re receiving too.

In both 2010 and 2011, the couple received $50,000 from the Park Foundation.

“I want everybody to know that they have a very special interest in mind,” says Shepstone, “and that’s keeping hydraulic fracturing and natural gas drilling out of New York state.”

The Park Foundation gives out about $18 million a year in grants - with $1 million going to groups working on hydrofracking issues, according to the foundation’s executive director, Jon Jensen.

Jensen says the Slottjes were already doing the work before receiving money from Park. To say the Slottjes are working for Park is misleading, Jensen says.

“We heard about them in the community,” says Jensen. “We heard they were out there doing good work to help communities assess the hydrofracking issues.”

The Slottjes say all the attention over the money they receive from the Park Foundation is just an attempt to distract people from the important issues.

“The question really isn’t about Park,” says David Slottje.“It isn’t about whether we’re rabble rousers or not.

“The issue here - the sole issue - is who gets to decide what a town looks like: the people who live there or the oil and gas industry.”

Energy in Depth’s Shepstone says officials should be listening to their town attorneys, not the Slottjes, when considering new laws.

“They’re coming and essentially substituting for the local attorney,” says Shepstone. “The local attorney is relegated to the background.”

Landowners and people from Shepstone’s organization go to many of the meetings where the Slottjes speak. They film the talks and write rebuttals. All this opposition hasn’t caused the Slottjes to seek a lower profile.

In fact, says Helen Slottje, it’s kept her going.

“If they haven’t attacked us a couple times each week, I must be doing something wrong,” says Slottje. “It’s perverse, but that’s probably why I’m a lawyer. I don’t mind fighting and I really like to win.”

Slottje is convinced they are winning, that the courts will uphold the bans.

But not everyone is so sure.

Will the bans hold?

Scott Kurkoski is the lawyer for the Joint Landowners Coalition of New York. He represents a Middlefield, N.Y. landowner suing over the town’s drilling ban.

“I have some serious concerns about what David and Helen Slottje are doing,” says Kurkoski. “They, in many cases, are trying to convince towns that this is fine.”

Kurkoski thinks the bans will eventually be overturned on appeal.

And if not, he says there will be lawsuits against towns over whether they can stop residents from selling mineral rights without compensation.

“So I’m not sure the towns understand what the Slottjes are getting them into,” Kurkoski says.

These small towns could stand to lose millions in legal fees and landowner compensation, according to Kurkoski.

It will be a while until the legality of the bans gets sorted out by the courts.

And in the meantime, the Slottjes and their opponents keep traveling around the state, visiting towns and offering clashing legal arguments on what to do about hydrofracking.