By PETER APPLEBOME Published: February 12, 2013 in New York TimesIn upstate communities large and small, natural gas drilling has generated talk, heat, acrimony and controversy, from regular citizens to concerned celebrities like Yoko Ono and Mark Ruffalo.
The New York Times
Sanford, N.Y. sits atop the gas-rich Marcellus Shale.
Now the town of Sanford, N.Y., by the Pennsylvania border, one of the rare places where officials have actively sought renewed gas drilling, including the process known as hydraulic fracturing, or fracking, finds itself in court because it decided that it had heard just too much.
In September, Sanford’s town board unanimously ">approved a resolution to bar any more discussion of gas drilling at its monthly meetings because the issue was taking up too much of its time.
The resolution said the town had already heard extensively from both sides. It understood their positions. And it did not plan to hear any more until the state completed its environmental review.
Now Sanford finds itself in the middle of a legal dispute, an unexpected new front in the fracking wars that offers some broader questions about how best to reconcile free speech and a governing body’s need to efficiently conduct its business.
On Tuesday the Natural Resources Defense Council and Catskill Citizens for Safe Energy filed suit against Sanford, a community of 2,400 residents in Broome County that sits atop the gas-rich Marcellus Shale, alleging that the resolution violated residents’ free speech rights.
The resolution said: “It is the determination of this Board that hereafter no further comment will be received during the public participation portion of this or any future meeting regarding natural gas development,” until the state’s environmental review was done.
While many landowners in shale areas, like Sanford, have argued that fracking can provide a needed economic boost, opponents of fracking contend that the millions of gallons of chemically treated water that is injected into the ground to free trapped gas is a peril to the environment. On Tuesday, the state health commissioner said he needed more time to review the issue, indefinitely postponing a decision by the Cuomo administration on whether to lift the state’s moratorium on new drilling.
In the lawsuit, the environmental groups said the resolution “unlawfully bars plaintiffs’ members from speaking at town board meetings about a matter of substantial public interest that has generated significant political activity.” The suit, filed in Federal District Court, asks the court to declare the ban unconstitutional and to prevent the board from enforcing it.
“If people are silenced by their own elected representatives, how can they trust them to act in their best interests?” Kate Sinding, a lawyer for the Natural Resources Defense Council, said in a statement. In an interview she added that, if the board was a neutral body on the issue, the restriction might be reasonable. But, she said, “In the context of all the blatantly pro-fracking actions that the board has taken, this is an unreasonable restriction.” The board has passed a resolution rejecting a fracking ban, and has also written to the governor, asking him to remove the moratorium.
She said a time limit on comments applying to both sides would have been an appropriate response, but not a total ban.
But the town attorney, Herb Kline, said the discussion before the board was invariably split, as was the town, and the policy was not about stifling a point of view.
“What was happening was that the fracking discussions occupied so much time during the public participation portion of the prior meeting that the town board was not able to accomplish its regular business,” he said. “It was all getting very repetitious and they just said: ‘We’ve heard enough for now, but you can still give the town clerk written materials we will review.’ ”
While the suit alleges violations of state and federal free speech rights, Robert J. Freeman, executive director of the New York State’s Committee on Open Government, said the state’s open meetings law allows governing bodies much leeway in agreeing whether to hear public comments.
“The open meetings law gives the public the right to attend, listen and observe,” he said. “It says nothing about the public’s right to speak.” Similarly, he said there is no “gag order” as alleged by the board’s critics because residents can say, print, publish, e-mail or otherwise express their viewpoints on fracking anywhere in town, they’re just not guaranteed the right to do it at every public meeting.
Still, he said, if the speaking restrictions, in his view, are consistent with the state open meetings law, residents still had the final say.
“If you don’t like what the people in government are doing, you can vote the rascals out,” he said.
A version of this article appeared in print on February 13, 2013, on page A25 of the New York edition with the headline: Town Sued After Barring Debate on Gas Extraction at Public Meetings.