Agricultural Land Use and Natural Gas Extraction Conflicts by Taylor Madeline;Hunter Tina; & Hunter Tina

Author:Taylor, Madeline;Hunter, Tina; & Hunter, Tina [Taylor, Madeline & Hunter, Tina]
Language: eng
Format: epub
Publisher: Taylor & Francis Group

8 New York State, USA

Introduction

Shale gas extraction and exploration in the USA is longstanding, having been in operation since 1825 in New York State. Thus, legislative and policy issues in the USA, as a ‘mature State’ for shale gas, are much more developed in some aspects than in other jurisdictions, such as Australia and China. However, it was not until the development of ‘slickwater’ hydraulic fracturing by George Mitchell in Texas, in the decade from 1997, that shale gas became a ‘game changer’ to the USA.1 As of 2017, unconventional gas now equates to 60 per cent of total USA natural gas production.2 This rapid increase has been attributed to the advent of slickwater hydraulic fracturing techniques, coupled with the injection of chemicals and water to ‘fracture’ the shale rock and produce unconventional gas.3

The expansion of hydraulic fracturing in the USA has led to a plethora of diametric regulatory positions amongst the states. States such as Texas and Pennsylvania have rushed to embrace shale gas through an adaptive management approach. This has encouraged exploitation, positioning shale as a transition fuel during the shift from oil and coal burning to energy generation from carbon-free sources. This is contrary to the position of other states, such as New York, which have chosen to place a permanent ban on hydraulic fracturing. This ban is based on the negative findings associated with hydraulic fracturing on rural communities, the environment and public health implications stemming from potential contamination of the Catskill Water Table.4 The Marcellus shale formation is the main source of natural gas production in the USA and is located underneath the states of New York, Pennsylvania, West Virginia and Ohio.5 In 2015, after a 7-year review, the state of New York permanently banned all hydraulic fracturing activities of shale gas in its regional jurisdiction of the Marcellus play. The socio-legal environment that led to the ban in New York State, compared with the adaptive and market-led regulation of neighbouring state Pennsylvania,6 demonstrates the application of the precautionary principle.

This chapter presents an analysis of application of the precautionary principle to hydraulic fracturing activities in New York State. It explores the regulatory enactment of the state-wide ban on hydraulic fracturing, before analysing the regulatory response of rural communities in the adoption of the Municipal Home Rule. The implementation of the Municipal Home Rule, by banning oil and gas activities, has effectively empowered rural communities to pass self-administered laws for the protection and enhancement of their general welfare.7 An example of self-regulation is the Joint Landholders Coalition Of New York (JLCNY), which demonstrates the power of collective action as landholder groups collectively negotiate community oil and gas leases. The New York experience provides important and salutary examples of the role played by local communities in influencing the trajectory of state government legislation in response to the challenges of shale gas industrial activity.

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