Archives for March 2012
to zone or not to zone
ELBERT COUNTY REPUBLICAN PARTY
RESOLUTIONS FOR PLATFORM
2012
(partial list – all passed at Assembly 5/24/2012)
12. Be it resolved, the Elbert County Republican Party support and encourage responsible growth, respecting the rights of all county residents consistent with the goal of preserving the unique rural and natural character of Elbert County.
15. Be it resolved, the Elbert County Republican Party requests that the elected Board of County Commissioners implement the noxious weed control plan as directed by State Law.
16. Be it resolved, the Elbert County Republican Party request that the elected Board of County Commissioners adopt, implement and enforce a 300 year water supply plan based on actual water usage.
17. Be it resolved, the Elbert County Republican Party request that the elected Board of County Commissioners adopt responsible planning and development measures to ensure that growth pay its own way and ensure that new infrastructure demanded by new development is not subsidized by the taxpayer without a vote of said taxpayer.
– OR –
21. Be it resolved, the Elbert County Republican Party object to the expansion of Elbert County zoning laws.
~
Which will it be? You can’t have it both ways.
This schizophrenic disconnect in the Republican Party Platform, approved yesterday at the 2012 County Assembly, is another symptom of our Elbert County uni-party implementation of the Republican Party.
Now, you could say the Resolutions Committee for the assembly failed in their mission to provide an internally consistent set of resolutions for the platform, however, it’s not really their responsibility to resolve this political question.
And, you could say that the Executive Committee of the Party is responsible because they suspended debate on the resolutions by assembly delegates, and thereby precluded the assembled body of Republicans from reaching a compromise. But after tolerating season after electoral season of mixed-use Republicanism, it would have been highly contentious, perhaps even violent, for a bunch of lefties and conservatives to work their substantive differences out in the space of a few minutes of polite assembly “dialoging.”
Besides, these issues cannot be legitimately resolved by a set of self-selected delegates numbering less than 1 hundredth of 1 percent of the population. Without a causal connection between voters and voting objects, be it candidate or issue, consent of the voters is cut off.
Enfranchised voters are the only interest group who can legitimately resolve this political question.
The Founders labored and argued for years to conceive constitutional methods to enfranchise voters and permit them to be governed legitimately. Sadly, our caucus assembly system which disenfranchises voters at large does not meet that standard. And muddying the preliminary waters by empowering a single party to clear both left and conservative candidates is a giant step further away from voter enfranchisement.
The way to fix this conundrum is to return Elbert County to a two-party system. Would the Democrat Party tolerate a bunch of conservatives diluting their precious social and entitlement agendas? Absolutely not! Why then do conservatives around here allow the left to tromp all over their Republican Party?
The way to fix this problem is to nip it in the bud. Make the change here:
ELBERT COUNTY REPUBLICAN CENTRAL COMMITTEE BYLAWS
Article III. POLICY
Section 4. Endorsements. The ECR acting as an entity, or the ECR elected officers shall not publicly support or endorse any Republican candidate that is involved in a primary who could represent Elbert County residents in a partisan race.
Change it to read something like the following:
ECR elected officers shall substantively analyze all Republican candidates with respect to information publicly available in local history as it relates to each candidates alignment with the Republican Oath and the Elbert County Republican Party Platform. Officers shall report their findings to Precinct Committeepeople in a timely manner as the findings become known.
As things currently stand, ECR elected officers must withhold a relevant body of knowledge from the rest of the caucus and assembly process. While done in the interest of fairness, the left games that good intention and turns it against the Republican Party from the inside.
Playing fair only works in an ethical environment. The left have never played fair and Republicans should stop fooling themselves about it.
corrupt Wisconsin judges
MSLF Update
Drowning In Rules
Posted 03/19/2012 07:00 PM ET, Investors.com
Regulatory Tyranny: Washington has extended the deadline by 60 days for hotels to install lifts for the disabled in their pools. But nothing changes in two months. The government will still be invading private matters.
The regulation was to take effect last week. But the Justice Department has given hotels an additional 60 days to comply. How generous.
The regulation, written by the Obama administration in 2010 based on the Americans With Disabilities Act, affects nearly every one of the roughly 51,000 hotels in the U.S., since there are few that have no pools.
The impact would actually be wider than that. In many cases, properties have more than one pool, and each pool, or “water feature” — which includes whirlpools — must have a lift.
With each lift costing as much as $6,000, hotels are being required to make significant investments in equipment that will get little use. Hotels could simply refuse to comply, but a lack of compliance through failure or refusal results in fines that can reach $55,000.
Some will say the government’s order is only fair. And while a portion the population will no doubt benefit from the rule, we have to ask: Is it a legitimate function of government to intrude into private affairs?
Regulation supporters will argue that every paying customer has an equal right to hotel pool access. But such a right requires the violation of the hotel owners’ right to the money they have earned in peaceful, voluntary transactions. How can something be a right when to provide another’s right must be violated?
A government that can dictate how businesses are run is no longer merely a government. It is a plundering force operating without constraint.
This isn’t merely an issue of pool lifts at hotels. It’s about a mandate to buy health care insurance; it’s about telling the auto industry it has to meet a bureaucratically concocted fuel-economy standard; it’s about the compulsory participation in the welfare state.
It is, as well, about seizing private property at government whim; it’s about any of the thousands of regulations that clog the Federal Register and the incessant “lawmaking” in capitols, city halls and county chambers that has no regard for our freedom. It’s about government no longer being the protector of God-given rights, but coercively creating “rights” that don’t exist.
If voters don’t soon re-examine their principles, the plundering force will have grown too big to ever be contained.
misconceptions
Message to New-Plains leftists, and all leftists for that matter: You are way over-thinking the problem in your Lincoln Day Dinner Opinion.
It’s your politics that depend on conspiracy, elaborate design, subterfuge, underground networking, militancy, belief structures without supporting cause and effect, collective force, and activist imposition. You, evidently, think your politics are worth breaking a few eggs to make your utopian omelet.
Of course all that misspent energy begs questions about what on earth led you to such methods because they’ve never led to anything but poverty, misery and death. But then you dissemble about the poverty, misery and death that come from your totalitarian methods by saying, “Oh that’s the natural condition of things before we arrived and we just haven’t done enough yet. Give us more time and we’ll get it right.”
The problem here is that after you first claim that the natural state of things is horribly wrong in some way, your solutions invariably attempt to return us to conditions that you leftists always use to justify more intervention! If things were so bad, why in the name of progress do you always try to return us to conditions when things were worse? Apparently progression is really regression in the leftist skew.
And though you don’t know where your regression/progression is really going, you believe that whenever and wherever you arrive, the end will justify the means. Your terrible tenacity that spawned so much poverty, misery and death will be forgiven by the few who survive to cross the threshold to walk hand in hand through the gates of utopia. The awe of the perfectly sustainable, fair and clean human society will wipe their memories clean of all the horror spawned from your mythology.
Now pay attention. You really should learn to stop projecting this sort of thing on to conservatives. We’re not like you. We don’t use these techniques, these conspiracies, these impositions, or these forces. Look around you at one of these Elbert County Republican gatherings. The conservatives are the ones in the room not doing any of that stuff. You look really stupid when you paint us with those brushes.
Truth is, the only time we even think about such devices is when we’re forced to describe you. Think about this if you dare. Liberty is like a ship without a captain. It’s a massive rudderless force that takes no direction whatsoever to find the correct path. And only when you attempt to steer the ship does it go off course and crash into something.
You leftists have crashed the ship so many times in history that you’ve lost sight of how the whole thing operates.
I can’t imagine how to fix your conceptual framework. You are so broken.
—————————————————————————————————————
regulations ‘R’ us
List of New Bureaucracies in Obama’s Patient Protection and Affordable Care Act – PPACA
(Note: This is just from the enabling legislation. Each of these laws will spawn federal regulatory agency responses with tens of thousands of pages of CFR rules and federal bureaucratic enforcement. In classic Orwellian double speak, nothing about this legislation will make health care more affordable.)
1. Retiree Reserve Trust Fund (Section 111(d), p. 61)
2. Grant program for wellness programs to small employers (Section 112, p. 62)
3. Grant program for State health access programs (Section 114, p. 72)
4. Program of administrative simplification (Section 115, p. 76)
5. Health Benefits Advisory Committee (Section 223, p. 111)
6. Health Choices Administration (Section 241, p. 131)
7. Qualified Health Benefits Plan Ombudsman (Section 244, p. 138)
8. Health Insurance Exchange (Section 201, p. 155)
9. Program for technical assistance to employees of small businesses buying Exchange coverage (Section 305(h), p. 191)
10. Mechanism for insurance risk pooling to be established by Health Choices Commissioner (Section 306(b), p. 194)
11. Health Insurance Exchange Trust Fund (Section 307, p. 195)
12. State-based Health Insurance Exchanges (Section 308, p. 197)
13. Grant program for health insurance cooperatives (Section 310, p. 206)
14. “Public Health Insurance Option” (Section 321, p. 211)
15. Ombudsman for “Public Health Insurance Option” (Section 321(d), p. 213)
16. Account for receipts and disbursements for “Public Health Insurance Option” (Section 322(b), p. 215)
17. Telehealth Advisory Committee (Section 1191 (b), p. 589)
18. Demonstration program providing reimbursement for “culturally and linguistically appropriate services” (Section 1222, p. 617)
19. Demonstration program for shared decision making using patient decision aids (Section 1236, p. 648)
20. Accountable Care Organization pilot program under Medicare (Section 1301, p. 653)
21. Independent patient-centered medical home pilot program under Medicare (Section 1302, p. 672)
22. Community-based medical home pilot program under Medicare (Section 1302(d), p. 681)
23. Independence at home demonstration program (Section 1312, p. 718)
24. Center for Comparative Effectiveness Research (Section 1401(a), p. 734)
25. Comparative Effectiveness Research Commission (Section 1401(a), p. 738)
26. Patient ombudsman for comparative effectiveness research (Section 1401(a), p. 753)
27. Quality assurance and performance improvement program for skilled nursing facilities (Section 1412(b)(1), p. 784)
28. Quality assurance and performance improvement program for nursing facilities (Section 1412 (b)(2), p. 786)
29. Special focus facility program for skilled nursing facilities (Section 1413(a)(3), p. 796)
30. Special focus facility program for nursing facilities (Section 1413(b)(3), p. 804)
31. National independent monitor pilot program for skilled nursing facilities and nursing facilities (Section 1422, p. 859)
32. Demonstration program for approved teaching health centers with respect to Medicare GME (Section 1502(d), p. 933)
33. Pilot program to develop anti-fraud compliance systems for Medicare providers (Section 1635, p. 978)
34. Special Inspector General for the Health Insurance Exchange (Section 1647, p. 1000)
35. Medical home pilot program under Medicaid (Section 1722, p. 1058)
36. Accountable Care Organization pilot program under Medicaid (Section 1730A, p. 1073)
37. Nursing facility supplemental payment program (Section 1745, p. 1106)
38. Demonstration program for Medicaid coverage to stabilize emergency medical conditions in institutions for mental diseases (Section 1787, p. 1149)
39. Comparative Effectiveness Research Trust Fund (Section 1802, p. 1162)
40. “Identifiable office or program” within CMS to “provide for improved coordination between Medicare and Medicaid in the case of dual eligibles” (Section 1905, p. 1191)
41. Center for Medicare and Medicaid Innovation (Section 1907, p. 1198)
42. Public Health Investment Fund (Section 2002, p. 1214)
43. Scholarships for service in health professional needs areas (Section 2211, p. 1224)
44. Program for training medical residents in community-based settings (Section 2214, p. 1236)
45. Grant program for training in dentistry programs (Section 2215, p. 1240)
46. Public Health Workforce Corps (Section 2231, p. 1253)
47. Public health workforce scholarship program (Section 2231, p. 1254)
48. Public health workforce loan forgiveness program (Section 2231, p. 1258)
49. Grant program for innovations in interdisciplinary care (Section 2252, p. 1272)
50. Advisory Committee on Health Workforce Evaluation and Assessment (Section 2261, p. 1275)
51. Prevention and Wellness Trust (Section 2301, p. 1286)
52. Clinical Prevention Stakeholders Board (Section 2301, p. 1295)
53. Community Prevention Stakeholders Board (Section 2301, p. 1301)
54. Grant program for community prevention and wellness research (Section 2301, p. 1305)
55. Grant program for research and demonstration projects related to wellness incentives (Section 2301, p. 1305)
56. Grant program for community prevention and wellness services (Section 2301, p. 1308)
57. Grant program for public health infrastructure (Section 2301, p. 1313)
58. Center for Quality Improvement (Section 2401, p. 1322)
59. Assistant Secretary for Health Information (Section 2402, p. 1330)
60. Grant program to support the operation of school-based health clinics (Section 2511, p. 1352)
61. Grant program for nurse-managed health centers (Section 2512, p. 1361)
62. Grants for labor-management programs for nursing training (Section 2521, p. 1372)
63. Grant program for interdisciplinary mental and behavioral health training (Section 2522, p. 1382)
64. “No Child Left Unimmunized Against Influenza” demonstration grant program (Section 2524, p. 1391)
65. Healthy Teen Initiative grant program regarding teen pregnancy (Section 2526, p. 1398)
66. Grant program for interdisciplinary training, education, and services for individuals with autism (Section 2527(a), p. 1402)
67. University centers for excellence in developmental disabilities education (Section 2527(b), p. 1410)
68. Grant program to implement medication therapy management services (Section 2528, p. 1412)
69. Grant program to promote positive health behaviors in underserved communities (Section 2530, p. 1422)
70. Grant program for State alternative medical liability laws (Section 2531, p. 1431)
71. Grant program to develop infant mortality programs (Section 2532, p. 1433)
72. Grant program to prepare secondary school students for careers in health professions (Section 2533, p. 1437)
73. Grant program for community-based collaborative care (Section 2534, p. 1440)
74. Grant program for community-based overweight and obesity prevention (Section 2535, p. 1457)
75. Grant program for reducing the student-to-school nurse ratio in primary and secondary schools (Section 2536, p. 1462)
76. Demonstration project of grants to medical-legal partnerships (Section 2537, p. 1464)
77. Center for Emergency Care under the Assistant Secretary for Preparedness and Response (Section 2552, p. 1478)
78. Council for Emergency Care (Section 2552, p 1479)
79. Grant program to support demonstration programs that design and implement regionalized emergency care systems (Section 2553, p. 1480)
80. Grant program to assist veterans who wish to become emergency medical technicians upon discharge (Section 2554, p. 1487)
81. Interagency Pain Research Coordinating Committee (Section 2562, p. 1494)
82. National Medical Device Registry (Section 2571, p. 1501)
83. CLASS Independence Fund (Section 2581, p. 1597)
84. CLASS Independence Fund Board of Trustees (Section 2581, p. 1598)
85. CLASS Independence Advisory Council (Section 2581, p. 1602)
86. Health and Human Services Coordinating Committee on Women’s Health (Section 2588, p. 1610)
87. National Women’s Health Information Center (Section 2588, p. 1611)
88. Centers for Disease Control Office of Women’s Health (Section 2588, p. 1614)
89. Agency for Healthcare Research and Quality Office of Women’s Health and Gender-Based Research (Section 2588, p. 1617)
90. Health Resources and Services Administration Office of Women’s Health (Section 2588, p. 1618)
91. Food and Drug Administration Office of Women’s Health (Section 2588, p. 1621)
92. Personal Care Attendant Workforce Advisory Panel (Section 2589(a)(2), p. 1624)
93. Grant program for national health workforce online training (Section 2591, p. 1629)
94. Grant program to disseminate best practices on implementing health workforce investment programs (Section 2591, p. 1632)
95. Demonstration program for chronic shortages of health professionals (Section 3101, p. 1717)
96. Demonstration program for substance abuse counselor educational curricula (Section 3101, p. 1719)
97. Program of Indian community education on mental illness (Section 3101, p. 1722)
98. Intergovernmental Task Force on Indian environmental and nuclear hazards (Section 3101, p. 1754)
99. Office of Indian Men’s Health (Section 3101, p. 1765)
100. Indian Health facilities appropriation advisory board (Section 3101, p. 1774)
101. Indian Health facilities needs assessment workgroup (Section 3101, p. 1775)
102. Indian Health Service tribal facilities joint venture demonstration projects (Section 3101, p. 1809)
103. Urban youth treatment center demonstration project (Section 3101, p. 1873)
104. Grants to Urban Indian Organizations for diabetes prevention (Section 3101, p. 1874)
105. Grants to Urban Indian Organizations for health IT adoption (Section 3101, p. 1877)
106. Mental health technician training program (Section 3101, p. 1898)
107. Indian youth telemental health demonstration project (Section 3101, p. 1909)
108. Program for treatment of child sexual abuse victims and perpetrators (Section 3101, p. 1925)
109. Program for treatment of domestic violence and sexual abuse (Section 3101, p. 1927)
110. Native American Health and Wellness Foundation (Section 3103, p. 1966)
111. Committee for the Establishment of the Native American Health and Wellness Foundation (Section 3103, p. 1968)
a flag of convenience
Democrats caucused this evening at Kiowa Middle School for precincts 2, 3 and 13. Once upon a time the Dems were thick as thieves in these parts. I went down to KMS tonight hoping to catch a glimpse of a few of the old guard from those times perhaps showing off a bit of their old leftist activism. I had my note pad and pen ready. I had a recorder in my pocket in case the debate got hot and heavy and I couldn’t keep up with handwritten notes.
I arrived moments before the scheduled start at 7:00 p.m. I had expected to slip in the door at the last moment as an observer, perhaps even go unnoticed as I took a seat in the corner while sliding my recorder out, turning it on, adjusting the input volume, and hoping no one would be alarmed by the blinking red recording light that would indicate the unit was capturing a form of speech it had never before captured.
I was hoping against hope that I might glean some insight, some clue about this weird sect of humanity that has given me so much consternation through the years while providing me with an unfathomably deep pool of sophisms to rebut, refute and report. In the spirit of Dian Fossey, I was about to mingle with the gorillas in their native environment. Perhaps I would find out something about my own distant genetic past before a couple of large union goons rose to escort me out of the room. I was ready to deliver my plea about the 1st. Am., political speech and public meetings, and to have it fall on deaf ears as they manhandled me into the cold night, away from the secret knowledge of their enclave. I was emotionally prepared for the arbiters of transparency to pull the curtains shut on me as they cast me out.
To say the evening was anti-climactic probably raises the bar for an anti-climax to a new height. I was definitely not prepared to be the first attendee to show up. Nor was I prepared for a very pleasant Patty Sward to greet me and welcome me to stay. This was at 7:00! Patty and I. And Patty’s not even a resident of one of the subject precincts. She had volunteered to conduct this caucus because there was no one else to do it.
Well, it was about to be a very strange caucus between a non-voting volunteer and an observer from the other party when a couple of nice ladies showed up, Janine and Lark I think. Ahhhh! Real local Democrats had arrived!
Well, the whole thing was over almost as soon as it began with the 2 Democrats, 1 volunteer, and 1 conservative blogger observer. No goon squad, no activism, and not a single note on my pad. When it became clear that nothing political would be discussed I offered to leave the caucus because I didn’t want my presence to chill their political speech. But they assured me that was not the case and that I was welcome to stay. And that was about it. They filled out some delegate paperwork, the ladies took their leave, Patty and I shared some parting thoughts, and the Precinct 13 Democrat Caucus was over.
You know, it wasn’t my place to confront them with opposing views at their caucus, nor was it even my place to speak at their caucus, so I did not confront them. Nor did they seem too interested in airing out any prototypical issues from their side. I could speculate about reasons for this but it would be pure speculation. They were very nice, you know, people I would be happy to call friends.
And I respect that they represented without guile their political preference, even though they didn’t care to get into it in much detail.
Perhaps more importantly, I have to conclude that everything I’ve said in the past about the Republican Party in Elbert County being used as a flag of convenience for the great majority of local leftists has been proved correct. There may only be a handful of Democrats in Elbert County, but it’s simply not plausible that there are so few leftists in Elbert County.
This points to a glaring problem with the Elbert County Republican Central Committee Bylaws which are framed from the perspective that all local Republicans are bona fide Republican. Now I have proof this is not true. Still, ECR executive members are bound to support without prejudice all Republican candidates, notwithstanding the real nature of those candidates.
This is a thorny problem. The current system tolerates, even encourages this gaming. To those of us who’ve had a few years to observe the game, it’s fairly obvious. My guess, however, is that many if not most county assembly delegates — the people who will place the next commissioner candidates on the primary ballot — may not appreciate the full spectrum of political preferences represented by their Republican candidates.
In this game, the labels “Republican” and “Tea Party” cannot be counted on to mean conservative. Perhaps the Republican Party Bylaws can be amended before the next election so that the local GOP can no longer be abused as a flag of convenience. Solving this problem, while preserving the power of the delegates’ voting franchise through the county assembly, should be a priority for the ECR Central Committee.
Elbert County has a perfectly viable Democrat Party and it should be used as such. Political questions are meant for resolution in the public square, not the stealthy back channels that Robert Rowland advises.
humility
Human Nature Doesn’t Allow History To End
By VICTOR DAVIS HANSON
Posted 03/02/2012 06:53 PM ET
The European Union and the United Nations, as well as globalization and advanced technology, were all supposed to trump age-old cultural, geographical and national differences and bring people together.
But for all the high-tech veneer of the 21st century, the world still looks a lot like it did during the last hundred years and well before that.
After the Greek financial meltdown and the emergence of German financial dominance, Europe once more obsesses over the so-called German problem. Should Europeans admire the industry of the German people, or fear that such competency and drive — as in 1870, 1914 and 1939 — will eventually translate into German political and military supremacy?
The division of Germany, the common Soviet threat, the NATO alliance, the European Union and German war guilt for the last half-century all repressed German singularity. But the first two realities have disappeared. The latter three soon might.
Once again, no one quite knows how to deal with German exceptionalism. Apparently, the borders and the currency of Germany change, but the unrivaled work ethic and productivity of the German people do not.
Examine the violence of the world today a decade after 9/11. Much of it is still in the Middle East in general, and concerns Islam in particular.
The protests of the Arab Spring may well turn into the repression of the Arab Autumn. Syria is aflame. Bombs go off almost daily in Afghanistan, Iraq and Pakistan. Rockets are poised in Gaza and Lebanon. Iran either threatens to get a bomb or to use it once they get it. Fascism, communism, Baathism, Pan-Arabism, Pan-Islamism and various dictators come and go.
But the tribal nature of the Middle East and the unease of Islam with other religions, with a modernizing world and with a rival West somehow seem to remain the same — whether at Lepanto in the 16th century or at the Strait of Hormuz in the 21st century.
There are autocrats in Russia again. From the czars to the Soviet communists to Vladimir Putin’s cronies, there is something about constitutional government or liberal rule that bothers Mother Russia.
The more that progressive outsiders seek to lecture or reform Russians, the more likely they are to bristle and push back with left-wing or right-wing nationalist strongmen. At present, we do not know whether there will be a Czar Vladimir, Comrade Putin or Putin Inc. in charge, but we fear it does not matter much.
For centuries, Christianity often fought Islam in the mountainous, war-torn crossroads of the Balkans. And from the assassination of Archduke Ferdinand to the ethnic cleansing campaign of Slobodan Milosevic, the Balkans remain Europe’s powder keg.
Now with rioting and unrest in Athens, a financial earthquake that started in tiny Balkan Greece is shaking up some 500 million people in the European Union.
America is not exempt from such stereotyping. Every so often Americans reluctantly get involved abroad, grandly seek to remake the world in our image, become frustrated that we cannot, then start to disengage and disarm, retreat home and promise to stay there — before starting the cycle over.
After World War I, World War II, Korea, Vietnam and, more recently, our wars in the Middle East, we said “never again” — only to lecture others and, in schizophrenic fashion, intervene once more.
At times, Woodrow Wilson, Franklin Roosevelt, Lyndon Johnson and George W. Bush all thought they could make the world safe for democracy. Calvin Coolidge, Jimmy Carter and Barack Obama assumed we had neither the money nor the virtue to try.
New cure-all ideologies and organizations likewise have come and gone. Fascism, communism, socialism and the Keynesian redistributive state all promised a sort of new, better man. But mostly they ended up bringing neither peace nor prosperity.
In response to all this depressing predictability, technocratic elites still dream up international solutions. The League of Nations was a noble idea that proved to be an irrelevant hothouse. No one still believes the pretentious United Nations is much more than a collective debating society.
The nondemocratic European Union is going the way of the past megalomaniac and failed dreams of Charlemagne, Napoleon and Hitler of one united European continent, one system, one ideology. What, then, are we left with? Only the humility that human nature does not change much.
That unpleasant fact means that about all we can do is to keep muddling through, stay vigilant and hope for the best while preparing for the worst. For all the problems of national pride, democracy, free markets, alliances and military preparedness, the alternatives seem far worse.
fracking jurisdiction
Two New York Municipal Fracking Bans Upheld – Why They Might Be Overturned
Posted by Eric Waeckerlin on March 01, 2012
Last week, two lower courts in New York upheld municipal bans (one enacted by the Town of Middlefield, the other by the Town of Dryden) on oil and gas exploration and production within town limits. The bans were prompted by concerns over hydraulic fracturing, which is a process used to stimulate oil and gas production. As with much of the events surrounding this issue, these municipal bans have evoked emotional responses and are being closely watched across the country for their precedent setting effect. It is almost certain both decisions will be appealed.
The drilling bans highlight the tension inherent in a home rule system of government—i.e., balancing the scope of a municipality’s legislatively-granted authority in the face of central governing state law. On the one hand, municipalities have certain police power and zoning authority to pass laws and ordinances for the well-being of their citizens. These powers, however, are not unbounded. The state has a substantial interest, not only in the regulation of certain industries, but in ensuring consistency and efficiency in the regulation of those industries. Often, the state legislature will see fit to “preempt” local or municipal regulation over certain activities. With regard to oil and gas activity in New York, the State legislature drafted the preemption language as follows (ECL 23-0303[2]):
The provisions of [the Oil, Gas and Solution Mining Law] shall supersede all local laws or ordinances relating to the regulation of the oil, gas, and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.
Both courts held that this language did not prevent either town from enacting total prohibitions on drilling within town limits. The Dryden court framed it this way—“[the statute] does not expressly preempt local regulation of land use, but only regulations dealing with operations.” In both courts’ view, the bans are proper because they regulate land use, not the mechanics of oil and gas operations (i.e., the “where” not the “how”).” By prohibiting the entirety of an activity (industrial or otherwise), it is difficult to see how the towns are not regulating both the “where” and the “how.” Indeed, Blacks Law defines “regulation” as “the act or process of controlling by rule or restriction.”
For several reasons, the courts may have overstepped here. First, both courts failed to recognize critical distinctions in prior New York case law interpreting a similar (but different) preemption clause concerning mining law. These earlier cases—Matter of Frew Run Gravel Prods. v. Town of Carroll and Matter of Gernatt Ashpalt Prods. v. Town of Sardinia are materially distinguishable in one critical respect from the oil and gas bans at issue in Dryden and Middlefield—they did not involve total bans. In Frew Run, the court upheld a zoning law prohibiting extractive mining in only one primarily residential district. In Gernatt the zoning law prohibited new mining activity within the town, but did not prohibit existing mining operations, thereby allowing at least some industrial activity in limited areas. Remarkably, neither the Dryden or Middlefield opinions mentioned these outcome-altering factual distinctions.
Second, the Dryden court’s reliance on analogous case law in Pennsylvania and Colorado is puzzling. One of the Pennsylvania cases cited, Huntley & Huntley, involved the denial of a conditional use permit to one company for one gas well on two single-family residential parcels. The second Pennsylvania case cited—Pennaco Oil Co.—concluded that limited zoning regulations prohibiting gas drilling within the flight path of an airport runway, and imposing setback and screening requirements was the proper use of zoning authority (i.e., the “where”). And the final Pennsylvania case cited—Range Resources—held that a town-wide ordinance imposing substantive restrictions on oil and gas development was preempted by state law. Perhaps most remarkably, the Dryden court cited as support the Colorado case Voss v. Lundvall Brothers, where an en banc panel of the Colorado Supreme Court held:
[T]he state’s interest in efficient development and production of oil and gas in a manner preventative of waste and protective of the correlative rights of common-source owners and producers to a fair share of production profits preempts a home-rule city from totally excluding all drilling operations within the city limits.
None of these cases support the court’s position.
In the end, the courts must balance municipal police power (including limited authority to protect the environment) with the state’s duties to ensure the well-being of its citizens, the environment, and continued economic viability. The latter depends greatly on consistent, certain, and efficient regulation. The Dryden and Middlefield decisions appear to have gone too far. Ironically, the best exposition of how courts typically strike this balance may be found in the Range Resources Pennsylvania Supreme Court opinion cited by the Dryden court:
Although the township expresses laudable goals in its concern for the health, safety and property of its citizens, the hazardous nature of oil and gas well drilling operations, and the potential for an adverse impact on environmental resources, those purposes have been addressed by the legislature in the passage of the act. While the township may have traditionally been able to pursue such purposes, once the state has acted pursuant to those purposes, the township is foreclosed from exercising that police power. [T]he comprehensive nature of the statutory scheme regulating oil and gas well operations reflects a need for uniformity so that the purposes of the legislature can be accomplished.
This is the majority position, widely adopted throughout the country. To hold otherwise renders the structure of home rule meaningless, and in this case would nullify the New York Assembly’s decision to preempt the field of oil and gas regulation. The New York State Court of Appeals would be on solid ground in overturning the drilling bans in Dryden and Middlefield.
Oil and Gas regulation
