DELVING INTO A LOCAL CLAIM

I have in this blog promoted a federalist approach to the study of civics. I have argued that a liberated federalism mental construct should be utilized to guide the content of civics instruction. In doing so, I believe one would have to displace the natural rights perspective which functions presently as the fundamental mental approach to the subject field. These mental approaches have been described and explained over the life of this blog. The reader is more than welcome to use the archival device offered on this website page – just to the right of this text. I have also suggested a wide variety of topics a teacher or material developer could incorporate in designing units of study or lessons that would reflect a federalist perspective. In this posting, I will add one more topic, but what distinguishes this topic is its uncanny connection to federalist thought. The topic is local governance over energy policy.

One of the main tenets of federalism is the argument that as much politics and governance should be done at the local level. This bias should be exercised within any parameters imposed by the federated commitments to which localities have agreed – as in the agreements US states have entered into when becoming part of the constitutional framework of the US government. This, in our history, has caused a bit of confusion and manipulation. The states agreed to the political rights guaranteed by the US Bill of Rights, for example. From time to time, certain state policies have offended the provisions of the first ten amendments to our constitution. The states have, on those occasions, claimed states' rights to pursue those policies. But the courts – interpreters of the Constitution – have seen to it that the states have been maintained within their proper roles. At times this process has been slow but, overall, the appropriate state's leeway has been respected and states have had their legitimate rights protected while keeping them true to their commitments.

Associated with this concern has been the relationship of the state government and its more local communities. Here, the concern is for what is called “home rule.” I have written about this concern in the past, but a more extensive treatment is called for – a topic for a future posting, perhaps. Here, though, I want to encourage incorporating home rule issues in instruction. To promote it, let me suggest a look at a development that is going on right now and promises to be more and more important to our national discourse.

In the state of New York, a court decision by that state's State Court of Appeals promises to have an important and far reaching effect on the national energy policy. In a 5 to 2 decision, that court ruled that local zoning provisions could be used to ban fracking practices by oil and gas corporations. Apparently, across the country in several states – New York, New Jersey, California, Colorado, Michigan, Ohio, Pennsylvania, and North Carolina – local communities, concerned with the potential hazardous environmental and health related effects of fracking, have pushed for and have instituted zoning restrictions on energy companies extracting oil and gas by this process. Fracking uses hydraulic fracturing of shale rock and horizontal drilling to get at oil and gas deposits deep under the earth's surface. The practice, it is claimed, has been responsible for pollution of water supplies and other environmental problems which, in turn, have led to certain health problems. The process promises to make the US energy independent and is heavily backed by the energy industry. That industry claims the practice is safe, but environmental groups have condemned it as not being safe. So a heavy duty political battle has ensued which has even included an anti-fracking, feature film being released. But what I find so compelling as a federalist issue is this development: a New York court upholding local community rights to ban these large corporations from going through with fracking by using local zoning laws. And nowhere, it seems, is this more illustrated than in the town that is the subject of the lawsuit that led to the court decision.

This decision was rendered as a result of the Denver based energy company, Anschutz Exploration Corporation, suing local jurisdictions, Dryden and Middlefield, New York. Those local communities put in place zoning restrictions against Anschutz exploring for gas using the fracking method. Apparently, those regulations demonstrate the power of local people in determining their fate and illustrate a basic federalist claim: it is at the local level where an individual or group with limited political resources can make its wishes known and acted upon. In the case of Dryden, the zoning provisions followed local elections where the issue of fracking was front and center. The decision is readily seen as a victory for these local forces. You can get an appreciation for this by reading the language of the majority decision:

We do not likely presume pre-emption where the pre-eminent power of a locality to regulate land use is at stake. Rather, we will invalidate a zoning law only where there is a “clear expression of legislative intent to pre-empt local control over land use.” … [A]t the heart of these cases lies the relationship between the State and its local government subdivisions, and their respective exercise of legislative power. These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits.¹

In other words, the exclusive focus of this decision is the federalist concern over local governance.

This development, while it has to do with a state court decision, is not limited to New York state. As indicated above, other communities in other states have also adopted such zoning restrictions. It just so happens that the New York court is the first to issue a decision regarding these restrictions. An important aspect of the New York decision is the court is not getting into the merits of fracking, per se. Instead, the court limited its legal reasoning to the principle of home rule. The majority decision pointed out absent state law specifically protecting the energy industries against such bans or legislation that legally establishes an energy policy that includes fracking, leaves it to local zoning commissions to be able to prohibit the activity. Of course – and this has already been mentioned by industry spokespeople – the well-heeled interests will target the state legislature to get their interests protected. Will this counter effort succeed in undoing what the zoning regulations have tried to protect? Perhaps, but that process will be interesting to watch and analyze and will reflect a lot of what makes our politics tick. It will bring to bear an awfully rich faction, one that has not been shy in spending its resources to advance its interests, against less resourced people. It will also add to or detract from this very American tradition of local governance. Will local communities rise to the challenge? If yes, how will they do it? If no, what obstacles will do them in? I can't think of a more federalist centered issue and one that promises to highlight the most determinant factors affecting our domestic political process. Civics educators and concerned parents: this is a rich deposit of material to explore and exploit.

1Reported in Mufson, S. (2014). Frustration for the fracking industry. Portland Press Herald [Portland, Maine], July 3, A section, p. 2. The facts reported in this posting are derived from this article.