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January 14, 2012

Home rule laws aren't a radical idea

Guest Commentary By N.Y. Sen. James Seward A lot of discussion and debate has occurred in our area lately over the issue of 'home rule' as it would apply to natural gas drilling. Let me offer some thoughts and my perspective on the issue and on the legislation I have sponsored (S. 5830) to enable local governments to treat natural gas drilling the way zoned communities treat any other commercial, industrial or residential use.

'Home rule' is neither new nor radical. It's enshrined in our state constitution, specifically Article IX, and requires deference to the level of government closest to the people.

Fact: states where natural gas drilling is occurring are mainly home rule states. Texas, Colorado and Pennsylvania all require local approvals, and in some cases, issuance of local permits and fees. Some states permit municipalities to impose varying rules on drilling, including differences in setbacks from wells, water sources, and homes.

For some to claim that my home rule legislation will make it more difficult for gas drillers to deal with a crazy quilt of local rules and regulations, I say this: first, drilling companies are used to it; and second, reluctance to do business in New York may have more to do with the price of natural gas or our geology.

At the end of the state's now three-year-plus process, New York will have greater uniformity than other 'home rule' states. My legislation offers nothing out of the ordinary where gas drilling is concerned.

One argument against my legislation is that local governments are not equipped to review applications or respond to the submissions of multi-national gas drilling companies.

To be clear, home rule does not authorize local governments to regulate how natural gas drilling is conducted, but where it is permitted, much like town zoning rules establishing where someone can operate a slaughterhouse, a gas station or any other commercial use. The state would continue to review drilling applications and be responsible for the issuance of permits.

Several years ago, environmentalists pushed the state to outlaw 'burn barrels' and the burning of brush, papers, etc. I declined to endorse the statewide ban, and the senate did not pass the legislation, precisely because we deferred to local governments and their existing authority to regulate burning. I urged advocates to have that discussion with their local town boards where it should be properly decided as a function of home rule. For some, who at that time supported statewide rules, but now in gas drilling emphasize home rule, the shoe is on the other foot. Others, who demanded only home rule and local action and their town's rights when it applied to burning, and shunned statewide involvement, find themselves opposing local control in favor of state rules. I've tried to maintain a consistent, pro-local control position.

Home rule is a conservative position that democratically elected local governments, closest to the people, decide what's appropriate for their communities -- as they do with other commercial and residential uses.

Property rights are fundamental to our country and Constitution. Our founding fathers, having experienced Crown ownership of land, recognized that private property is foundational to a free people. Balancing the property rights of one against the property rights of another is always a difficult task that faces officials. One's right to use his property for a junkyard must be balanced against another's right to maintain the value of his residential property, even though the property owner seeks to use the land to extract a higher value from it. The courts and the law were established, among other reasons, to address conflicts in property rights.

When the DEC has finalized its state regulations, gas drilling will occur in communities where it is supported and welcomed, under consistent statewide rules. Conversely, in communities that have concluded that it is not compatible with their community values or planning, local officials should have the authority to make those decisions in dialogue with their constituents. I don't find that position particularly radical.

The issues are not easy and we can not arrive at our conclusions in a flippant manner. This is a difficult issue, and we should proceed carefully. Sen. James Seward, a Republican, represents New York's 41st district, which includes Herkimer, Cortland and Otsego counties and portions of Schoharie, Greene Tompkins and Chenango counties.

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