Helen Slottje was living the good life in Ithaca, N.Y, when, in 2009, she made a surprising discovery: Her rural community of small towns and dairy farms was practically on top of the Marcellus Shale, the largest known deposit of underground shale gas in the United States. Companies were already descending on Ithaca in search of oil and gas leases. To Slottje, this did not seem like a great idea. The region is also home to the headwaters of the Finger Lakes, the source of most of northeastern New York’s drinking water.
A former corporate lawyer — her last big case involved selling the air rights over the Massachusetts Turnpike — Slottje rolled up her sleeves and began to think her way around the issue. What rights did Ithaca have to preserve its water? How would it argue them in court? Together with her husband, David (also a lawyer) she founded the Community Environmental Defense Council (CEDC), and began to build a legal case against an industrial facility being built by a fracking company in a nearby town.
She lost the case, but in the process, realized that local zoning and land use laws are surprisingly powerful. She came up with a new tactic — using zoning laws to outright ban fracking within a city’s borders. Slottje drafted a sample law based on the idea, and in 2011 it passed in nearby Dryden.
Since then, more than 170 towns and cities throughout New York have passed local laws prohibiting fracking, based on Slottje’s legal framework. She’s been behind the scenes on many of these decisions, attending community meetings and providing pro bono legal help.
It was hard work, but it’s had an unexpected twist. Slottje was just declared North America’s 2014 winner of the Goldman Prize, a.k.a. “the Nobel Prize of environmentalism” – making her, at least by one system of ranking, the most awesome environmentalist on the continent. I talked with her on the phone to see how she was adjusting and hear her plans for protecting America’s drinking water in the future.
Q. You wrote a law that was then adopted by all these other small cities. Had you ever written a law before?
A. No – there’s very little in law school that covers that sort of thing. Law schools, in general, are just feeder mills for corporate practice. Most of the emphasis is on taxation and other things that corporate lawyers are trained to deal with.
I had no experience in New York environmental laws or municipal government. In real estate law, if you need local permits, you have special people who deal with it. But when I found out about this, I didn’t have millions of dollars to go start a foundation. And what law school does teach you is how to learn.
Q. So how did you go about learning it?
A. Basically, both David and I are voracious readers. We were living in Ithaca, which is home to Cornell. They have a law library that is open to the public except during exams. We read every book we could find on oil and gas law, on subsurface trespass and horizontal well bores, on municipal law, and on environmental law — cover to cover. They didn’t have a very extensive collection. It was maybe about four or five shelves of books.
We started reading in 2009. It took about a year before we figured out that municipalities could use home rule and case law.
Q. Was the industry worried about home rule?
A. No. They weren’t. They thought it was the best thing ever. They thought it was very clear and had a definite meaning. They would tell you all day long: “Towns can’t regulate the industry. There’s a state law. You can’t do anything. You can’t do anything.”
But for us to say that you are an incompatible land use is not a regulation of your operation. We can say, “We don’t want your industry in our town.” That may not seem intuitive to you and it wasn’t to them. But every court in New York that has been faced with the case has agreed with us. There really is a difference between “how” and “where.” If you don’t allow the “where” you never even have to get into the “how.”
Q. The law that you wrote has been adopted by towns across New York state. Has every one of them been upheld?
A. The industry has sued four towns on the grounds that you’re preempted. You’re superseded. You don’t have this authority. All four lower court justices upheld home rule. They haven’t been thrilled about it, but they’re like: “That’s the law. Can’t change it.”
At the middle level, the appeals to Dryden and Middlefield were heard by a panel. The four judges decided 4-0 to uphold the town’s rights. Binghamton’s law was invalidated on technical grounds, because they were in a rush and had passed the law using a different procedure. The judge altered his opinion by saying it would be valid if it were done the way that Dryden and Middlefield had. We had done it this way that he didn’t like.
On June 3, the highest court in New York is going to hear the Middlefield and Dryden cases. We expect they will uphold home rule as well. The only way they would not hold it up would be if they changed the law. They could technically change their interpretation of the law, but it would be unprecedented in N.Y. Traditionally, when a region takes away zoning power, they at least set up a regional board to administer it. They don’t take it away completely.
Q. Now, is this the kind of law that would only apply to New York? Or do other states have similar regulations?
A. In New York, this concept of home rule is in the bill of rights in our constitution. But even in Pennsylvania — Pennsylvania passed a law that made it crystal clear that oil and gas did not have to abide by zoning regulations. You could put an oil well next to a school, next to a hospital — anywhere.
Well, people challenged it. The highest court in Pennsylvania said these widespread laws that take away zoning — this kind of just complete giveaway of people’s rights to be safe and secure in their homes — were unconstitutional.
There are constitutional issues at stake here, because this was a violation of the right to a clean and healthy environment. Even in Pennsylvania. Who would have thought we would win in Pennsylvania?
Q. I hear a lot about oil by rail in New York. Does home rule apply to that?
A. No. Because of railroad law. We can’t do anything about that. And it’s really bad. In Albany they are trying to stop the permitting of a plant that would transfer oil by rail onto shipping. They do have local control over that. Trains come into a facility, but the facility is subject to zoning. But I haven’t paid much attention to that.
Q. I hear a lot of accusations of NIMBYism around people who are doing what you’re doing. But I’m also getting the sense that the “not in my backyard” crowd is one of the only groups that has real power in this situation because of private property laws.
A. NIMBY! I’m so sick of that term. We get accused of that a lot. People say “They‘ve done it in other places! What gives you the right to say no?” But if a serial killer knocks on your door, it’s not NIMBYism to fight back. Property rights have never included the right to hurt someone else. Your right to property has a flip side, which is an obligation to respect other people’s property.
Something like this is what wakes you up. Before I became involved in fracking, I never thought what it meant when I flipped the light switch on. I mean, sure, I tried to conserve energy and things like that, but until you see it coming to your backyard, you don’t realize how terrible it is.
We’re not NIMBY. We’re NIAB: Not in anyone’s backyard. If everyone said “Not here! This is my land!” we’d have a really powerful movement.
Q. You seem to just love this. I’m surprised that you went into corporate law instead of politics in the first place.
A. Well, there is a history of politicians in my family. Elizabeth Warren was one of my professors in law school, and I was just reading about her autobiography, where she meets with some really serious top-level Obama adviser and he tells her, “You can be an insider if you want to be. But you can never criticize another insider. Or you can be an outsider and you can say whatever you want.” That’s exactly the way it is.
Q. You had Elizabeth Warren as a professor? What was she like?
A. She was terrific then, and she’s awesome now. She wasn’t at Harvard then. I had her at Penn for contracts and bankruptcy. She was incredibly inspiring — very straightforward. She was just a real person, and most law professors didn’t come across as real people.
She would talk very honestly with us about her background — especially in the bankruptcy class. No one else questioned the system in law school. Everyone assumed the law was good. She was the only one who planted this idea in my mind that law is shaped to serve the interests of the wealthy.
Q. So you’ve been doing all of this organizing at the local level. Is there something stopping you from taking it to a higher level?
A. Because we feel that the federal government is bought and paid for. You can’t make progress at the federal level. The state government is bought and paid for. In New York, the Assembly is Democratic, and the Senate used to be Democrats, until four Democrats joined with Republicans and created an “Independent Democratic Congress.” They switch positions every other day. The effect is total gridlock.
There were all sorts of investigations into corruption in Albany. But in order to pass the budget, Cuomo stopped the corruption inquiry. That blows my mind. So now the attorney general is going to continue. But it’s pretty disappointing.
But local government — those are your neighbors. Some of them are in government to grease their own wheels, sure. But there’s just not enough influence that you wield as a local official where people want to make a big donation to you. Towns are one of the few places where it’s still one person, one vote. The local level– that’s where we have to fight.
That’s not to say it isn’t hard to try and pass these laws one by one. There are 932 towns in the state of New York. But for the people who live there, that’s just their town. While Albany – it’s three and a half hours from where I live to go to Albany. If you want to protest there, you have to get everyone on the bus and ride the bus to Albany. Then you get off and march around, and then you take the bus back. You have to take a whole day off of work.
If you’re fighting at the local level, you just have meetings with neighbors, go to town hall meetings, knock on doors. You take control of your own democracy. And then you know how local government works, so if another project comes along that you don’t like, you know how to fight it.
I have so many more friends now than I ever did. I feel so much a part of my town. We’re going to need locally resilient communities in the future, too.
Q. It seems like what you do could also make you enemies, though. You’ve never gone to the supermarket and had someone glare at you across the produce aisle?
A. Ithaca is like Berkeley or Cambridge, so no. But in some towns we work in, there are people who think we are stealing from them and taking money from them and their children.
Q. Who do these people tend to be?
A. They’re people who have already leased. Or they want to lease.
But one of the reasons they’re so unhappy is that they’re farmers, and the federal government subsidizes all the wrong things, and so they can’t make any money, and the only solution is fracking. If they could make money at farming, they’d have a choice.
Q. Did you at all think you were going to win the Goldman Prize? Had you heard of it before?
A. I had heard of it. I knew it was out there. But no, I didn’t think – they pick one person from the entire continent. I don’t know if you’ve ever heard of this book, Charlie and the Chocolate Factory? It’s like all the environmentalists went out and bought the chocolate bar, and only one of them has the golden ticket.
Q. Except the chocolate bar is spending a lot of time in a law library.
A. Right. It’s an expensive chocolate bar. But I look at this prize as a reflection on the entire movement. We needed people on the ground in every town to push their people to do this.
Q. So what’s next?
A. We just filed the court brief in the Dryden case. We’re continuing work on local bans – continuing to help towns we promised to help.
I’m hoping to use the Goldman Prize to get across the message that people should not feel embarrassed at feeling NIMBY. We need to break through the fog of spin-doctorism. Get people motivated and really talking property rights and environmentalism.
There’s a doctrine called “the public trust” which goes back to the Magna Carta. Back to Roman times, actually. It’s the foundation of our law. It says that the people — not just our generation, but future generations — own the water and own the land.
Right now, if you follow the procedures, you can get a permit to pollute. But the government doesn’t have the right to allow the destruction of fresh water. The water and the atmosphere need to be left in a state where it is safe for those future generations to use. People talk about development, progress, jobs, money, gross national product. But if it involves the destruction of public trust, it is wrongful and outside of their power.
This confirmation and mainstream validation of what we’re doing will hopefully get the word out and inspire. California has really strong home rule laws like there are in New York, and I’m meeting with some people there. Even in places like Texas, people are starting to assert their rights.