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Just south of the Finger Lakes region in New York’s Steuben County is a valley where three waterways meet to form a fourth. In the 18th century, this confluence of rivers (the Cohocton, the Tioga, the Canisteo and the Chemung) was marked with a wooden post.
According to the description of one explorer, the post’s elaborately carved surfaces featured 28 figures painted in red that depicted captured enemies and 30 headless figures that depicted, well, dead guys.
Art with a warning label.
The Village of Painted Post (pop. 1,842) now occupies that legendary spot. And, given the news that broke on the last day of 2015—a small band of citizens defeated the plans of fossil fuel behemoth Shell Oil—it might be time to carve a new post.
In a unanimous New Year’s Eve ruling, the Appellate Division, Fourth Department, in Rochester ruled against the Painted Post water withdrawal project. That project, which supported hydraulic fracturing in Pennsylvania, sold up to one million gallons per day of municipal water from the drinking water aquifer that underlies this quartet of rivers to a Shell Oil subsidiary (SWEPI LP) for use in drilling and fracking operations in Tioga County, Pennsylvania.
Represented by Shell attorneys at every stage, the Village of Painted Post had classified the water, which was transported across the border by rail, as “surplus property” in an attempt to avoid an environmental review of impacts. Those sales are now halted via injunction.
In a case brought by People for a Healthy Environment—along with the Coalition to Protect New York, Sierra Club and five local residents—petitioners claimed the combined impacts of the project had not been considered, as is required under New York’s State Environmental Quality Review Act (SEQRA). The appellate court ultimately upheld their argument.
Frank Potter, current acting People for a Healthy Environment president, noted that the water-filling station and the water-filled rail cars that rattled through the village late at night had created additional impacts that needed to be considered together with the impact of the water withdrawals. The court agreed.
“We are very pleased that the court acknowledged what is so obvious to us—that the Village did not follow procedures under SEQRA and that the people who live near the railroad tracks have legal standing in the courts,” Potter said in a phone interview. “This water grab by Shell threatens our quality of life through multiple pathways, including noise and light pollution [from train traffic], and all of these impacts need to be considered together.”
Attorney Rachel Treichler of Hammondsport, along with Buffalo attorney Richard Lippes, represented the petitioners, said she anticipates further involvement in the issue: “This ruling invalidates the current water sale agreement and issues an injunction against any further water sales until an environmental review is done. We assume the village will go back to the drawing board and do a new environmental review in compliance with SEQRA. My clients plan to be deeply involved in that new review process. If so, we will ask the Village to examine the environmental impact of water withdrawal not only on the local aquifer but also where the water is used to frack in Pennsylvania.”
Indeed, Treichler almost seemed to relish the teachable moments that ongoing legal battles provide. “This is a great opportunity for us to present the facts to the public about how the Corning aquifer works,” she said. “This is a highly stressed aquifer. Withdrawals in one place could potentially impact the quality of drinking water to people in seven municipalities.”
This Painted Post water withdrawal case, first filed in 2012, has followed a winding path.
In the beginning, in trial court, the ruling favored the petitioners both on standing and on the merits of the case. But then, on appeal, Shell’s lawyers once again challenged the legal standing of the petitioners and, on this technical point, prevailed. They argued that the petitioners were not being harmed in a way that was different from the general public, including petitioner John Marvin, who lived within 500 feet of the rail-loading facility. (Under New York State environmental law—but not under federal law—a petitioner must demonstrate special injury in order to have a right, a.k.a. “standing,” to bring a case to court).
The appellate court agreed with Shell’s attorneys, and the lawsuit was dismissed. The petitioners asked for a rehearing. They were denied. So, they took their case to the New York Court of Appeals—the highest court in the state, which agrees to hear only 7 percent of all cases brought before it.
In a huge break for the plaintiffs, the Court of Appeals agreed. And then it went on to overturn the decision of the appellate court on the issue of whether the special harm requirement for noise effects had been met, arguing that the appellate court had applied an “overly restrictive analysis.”
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