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Columns

December 3, 2010

Property rights argument doesn't support gas drilling

In a Nov. 12 article in the Daily Star, Otsego County Rep. Stephen Fournier predicted that banning natural gas drilling would give leaseholders the right to bring lawsuits under the Takings Doctrine. This is the legal concept stemming from eminent domain that if government regulations are so onerous that a property owner no longer has any economically beneficial use of his property, the government must pay the property owner for that land at its fair market value had the regulations not been in place, because the government has figuratively "taken" the entire value of his property. Mr. Fournier, an obvious proponent of private property rights, is letting his pro-drilling ideology trump reality.

Arguing that a leaseholder will have a right to compensation if drilling is banned is ludicrous. In essence, Mr. Fournier is foolishly stating that under the Takings Doctrine, if gas drilling is prohibited, the leaseholders will lose all economically beneficial use of their property. Hmmm. Their water supply will be intact, as well as their ability to use the land for farming, hunting, recreation and other purposes. What they've lost is a speculative opportunity to receive revenues from selling their gas.

Let's talk about private property rights and eminent domain. If gas drilling goes forward and my neighbor leases his land, government regulation gives that gas company the right to take the natural gas on my property against my will. The Constitution provides that no person shall be deprived of private property for public use without just compensation. Is natural gas going into the hands of a private gas company considered "for public use"? The government evidently thinks so. I will get paid a small percentage of the value of that gas. Will the gas company accurately tell me how much gas has been extracted from my property? Will I get fair market value for that gas? I'll never know. I'm at the mercy of the gas company and the government.

Gas leases on nearby properties could make property owners unable to sell their homes. If no buyer is willing to buy a property, what is its fair market value? Applying Mr. Fournier's logic, a non-leaseholder who can't sell his or her property because of uncertainties created by government regulation and by the Otsego County Board's support of gas drilling can file a lawsuit under the Takings Doctrine.

Mr. Fournier and other county board members need to open their eyes to what is already occurring in the region and stop spewing rhetoric to fit their agenda. The only private property rights Mr. Fournier and most other board members care about are those of the leaseholders. Thanks to their support for gas drilling, the rest of the private property owners in our region will suffer the consequences. These will include the continued deterioration of our property values as well as the possible wholesale destruction of our land and water. Just ask the residents of Pennsylvania about the value of their property once drilling exacted its heavy toll.

Those people leasing their land to the gas companies may realize a short-term profit; however, it will come at the expense of everyone in our region. This is simply wrong, and superficial arguments about private property rights do little more than provide a thinly veiled smokescreen for those dedicated to destroying the environment we all must share.

Paula Greene served as a legislative attorney drafting environmental and energy laws. She teaches Environmental Law at the State University College at Cobleskill and lives in Middlefield.

Tom Hickey is a professor of government at SUNY Cobleskill. He has published numerous books and articles focusing on U.S. Constitutional law and civil rights. He lives in Fly Creek.

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