[HISTORY: Adopted by the Town Board of the Town of Wales
as indicated in article histories. Amendments noted where applicable.]
[Adopted 6-14-2011 by L.L. No. 3-2011]
The previous recitals are incorporated herein.[1]
[1]
Editor's Note: Said recitals provided as follows:
Whereas, this local law is enacted pursuant to the inherent
right of the residents of the Town of Wales to govern and protect
their own community, including, without limitation, the Declaration
of Independence's declaration that governments are instituted
to secure the rights of people, and the New York Constitution's
recognition that "all power is inherent in the people";
Whereas, this local law, among other things, confirms and
reaffirms a Bill of Rights which recognizes and secures certain civil
and political rights of the residents of the Town of Wales to govern
themselves and protect themselves from harm to their persons, property
and environment;
Whereas the Town of Wales relies exclusively on the existence
and usage of natural well water as its sole source of water in the
Town;
Whereas, new technologies have emerged, and are being deployed
in other states, and are likely to be attempted to be used within
the Town of Wales to extract natural gas and oil through processes
known as hydraulic fracturing and horizontal drilling;
Whereas, this local law then bans the commercial extraction
of natural gas and oil, using the process commonly known as hydraulic
fracturing, and further bans horizontal gas well drilling within the
Town of Wales, because those forms of extraction violate the civil
rights of Town of Wales' residents by posing a direct and immediate
threat to the health, safety, and welfare of residents within the
Town of Wales; and
Whereas, this local law shall be known and may be cited as
"Town of Wales Community Protection of Natural Resources."
A.
The Town Board of the Town of Wales finds that the commercial extraction
of natural gas and oil by hydraulic fracturing or horizontal gas well
drilling in the rural environment of the Town of Wales violates the
rights of residents and poses a significant threat to their health,
safety, and welfare. Moreover, widespread environmental and human
health impacts have resulted from commercial gas and oil extraction
utilizing either hydraulic fracturing or horizontal gas or oil well
drilling in other areas. Permitting the activity of commercial gas
or oil extraction utilizing hydraulic fracturing and/or horizontal
gas well drilling violates the rights of residents and endangers their
health, safety, and welfare by allowing the intentional deposit of
toxins into the air, soil, water, environment, and the bodies of residents
within our Town. The activity poses a threat to some if not all of
the natural water supply upon which the Town of Wales relies as its
sole source of water. Contamination of groundwater, risks to air quality,
the migration of gases and hydraulic fracturing chemicals to the surface,
the inability to recover injected fluids and chemicals, and the potential
mishandling of waste are all potentially adverse impacts that may
occur. The potential costs associated with possible environmental
cleanup processes, loss of land value and human and animal health
concerns are undetermined. Fracturing fluid used far below the earth's
surface can pollute freshwater zones, contaminate surface or near-surface
water supplies, impact the rock shelf causing seismic events or lead
to surface subsidence. Also, water-related pollution events that occur
from hydraulic fracturing are on, or relatively near, the surface.
With the transport, handling, storage and use of chemicals and chemical-laden
water on sites, accidents that release materials into the environment
may occur.
B.
Meaningful regulatory limitations and prohibitions concerning natural
gas extraction, along with zoning and land use provisions, are barred
because they conflict with certain legal powers claimed by resource
extraction corporations. The Town Board recognizes that environmental
and economic sustainability cannot be achieved, and the health, safety
and welfare of the residents of the Town of Wales adequately protected,
if the rights of local majorities are routinely overridden by corporate
minorities claiming certain legal rights and powers, including the
authority to enforce state preemptive mandates authored, in many cases,
by the corporations that those mandates ostensibly regulate. The Town
Board also recognizes that sustainability and the adequate protection
of our residents cannot be achieved within a system of local preemption
which enables those corporations to use state governments to override
local self-government, and which restricts localities to only that
lawmaking specifically authorized by state government.
C.
The Town Board believes that the protection of residents and the
natural environment constitutes the highest and best use of the police
powers that this Town possesses. The Town Board also believes that
local legislation that embodies the interests of the community is
mandated by the doctrine of the consent of the governed and the right
to local, community self-government. Thus, the Town Board hereby adopts
this article, which recognizes a Bill of Rights for the residents
of the Town of Wales and bans commercial extraction of natural gas
and oil utilizing hydraulic fracturing and horizontal gas well drilling
within the Town of Wales because those methods of extraction cannot
be achieved without violating the rights of residents as recognized
and secured by this article.
As used in this article, the following terms shall have the
meanings indicated:
For purposes of this article, corporations shall include
any corporation, limited partnership, limited liability partnership,
business trust, or limited liability company organized under the laws
of any state of the United States or under the laws of any country,
and any other business entity that possesses state-conferred limited
liability attributes for its owners, directors, officers, and/or managers.
The digging or drilling of a well for the purposes of exploring
for, developing or producing natural gas or oil or other hydrocarbons
using a process commonly known as "hydraulic fracturing" and/or "horizontal
gas or oil well drilling."
Intentional deviation of a wellbore from the vertical for
the purpose of reaching subsurface areas laterally remote from the
point where a well drilling bit or similar equipment enters the earth
at the surface.
An operation in which water, chemicals and a solid proppant
are pumped into a wellbore at a rate sufficient to increase the pressure
downhole to a value in excess of the fracture gradient of the formation
rock, causing the formation to crack, thus allowing the fracturing
fluid to enter and extend the crack farther into the formation, forming
passages through which natural gas or oil can flow.
Any gaseous substance, either combustible or noncombustible,
which is produced in a natural state from the earth and which maintains
a gaseous or rarified state at standard temperature or pressure conditions,
and/or gaseous components or vapors occurring in or derived from petroleum
or natural gas.
A.
Right to water. All residents, natural communities and ecosystems
in the Town of Wales possess a fundamental and inalienable right to
maintain the sustainable access, use, consumption, and preservation
of water drawn from natural water systems, springs and wells that
provide water necessary to sustain life within the Town.
B.
Rights of natural communities. Ecosystems and natural communities
possess the right to exist and flourish within the Town. The residents
of the Town of Wales have the inalienable right to enforce and defend
those rights to protect all ecosystems, including, but not limited
to, wetlands, streams, rivers, aquifers, and other water systems,
within the Town of Wales.
C.
Right to self-government. All residents of Town of Wales possess
the fundamental and inalienable right to a form of governance where
they live which recognizes that all power is inherent in the people,
that all free governments are founded on the people's authority
and consent, and that neither individuals nor corporate entities and
their directors and managers shall enjoy special privileges or powers
under the color of state law which purports to make community majorities
subordinate to them.
D.
People as sovereign. The Town of Wales shall be the governing authority
responsible to, and governed by, the residents of the Town. The people
at all times enjoy and retain an inalienable and indefeasible right
to self-governance in the community where they reside.
E.
Rights as self-executing. All rights delineated and secured by this
article shall be self-executing, and these rights shall be enforceable
against individuals, corporations and governmental entities.
A.
It shall be unlawful for any individual or corporation to engage
in the extraction of natural gas or oil utilizing in whole or in part
the process commonly known as and herein defined as "hydraulic fracturing"
within the Town of Wales, with the exception of gas wells installed
and operating at the time of enactment of this article.
B.
It shall be unlawful for any individual or corporation to engage
in the extraction of natural gas or oil utilizing in whole or in part
the process commonly known as "horizontal gas well drilling" within
the Town of Wales, with the exception of gas wells installed and operating
at the time of enactment of this article.
C.
No permit, license, privilege or charter issued by any state or federal
agency, commission or board to any person or any corporation operating
under a state charter, or any director, officer, owner, or manager
of a corporation operating under a state charter, which would violate
the prohibitions of this article or deprive any Town resident(s),
of any rights, privileges, or immunities secured by this article,
the New York Constitution, the United States Constitution, or other
laws, shall be deemed valid within the Town of Wales.
D.
Corporations in violation of the prohibition against natural gas
extraction or seeking to engage in natural gas extraction shall not
have the rights of "persons" afforded by the United States and New
York Constitutions, nor shall those corporations be afforded rights
under the First or Fifth amendments to the United States Constitution
or corresponding sections of the New York Constitution, nor shall
those corporations be afforded the protections of the commerce or
contracts clauses within the United States Constitution or corresponding
sections of the New York Constitution. "Corporations," for purposes
of this article, shall include any corporation, limited partnership,
limited liability partnership, business trust, or limited liability
company organized under the laws of any state of the United States
or under the laws of any country, and any other business entity that
possesses state-conferred limited liability attributes for its owners,
directors, officers, and/or managers.
E.
Corporations or individuals engaged in the extraction of natural
gas or oil shall not possess the authority or power to enforce state
or federal preemptive law against the people of the Town of Wales,
or to challenge or overturn municipal local laws adopted by the Town
Council of the Town of Wales, when that enforcement or challenge interferes
with the rights asserted by this article or interferes with the authority
of the municipality to protect the health, safety, and welfare of
its residents.
A.
Any person, corporation, or other entity that violates any prohibition
of this article shall be guilty of a summary offense and, upon conviction
thereof, shall be sentenced to pay the maximum fine allowable under
state law for that violation and shall be imprisoned to the extent
allowed by law. A separate offense shall arise for each day or portion
thereof in which a violation occurs and for each section of this article
found to be violated.
B.
The Town of Wales may also enforce this article through an action
in equity brought in the New York State Supreme Court of Erie County.
In such an action, the Town of Wales shall be entitled to recover
all costs of litigation, including, without limitation, expert and
attorney's fees.
The foundation for the making and adoption of this article is
the people's fundamental and inalienable right to govern themselves,
and thereby secure their rights to life, liberty, and the pursuit
of happiness. Any attempts to use other units and levels of government
to preempt, amend, alter, or overturn this article, or parts of this
article, shall require the Town Board to hold public meetings that
explore the adoption of other measures that expand local control and
the ability of residents to protect their fundamental and inalienable
right to self-government. Such consideration may include actions to
separate the municipality from the other levels of government used
to preempt, amend, alter, or overturn the provisions of this article
or other levels of government used to intimidate the people of the
Town of Wales or their elected officials.
The provisions of this article are severable. If any court of
competent jurisdiction decides that any section, clause, sentence,
part, or provision of this article is illegal, invalid, or unconstitutional,
such decision shall not affect, impair, or invalidate any of the remaining
sections, clauses, sentences, parts, or provisions of the article.
The Town Board of Wales hereby declares that in the event of such
a decision, and the determination that the court's ruling is
legitimate, it would have enacted this article even without the section,
clause, sentence, part, or provision that the court decides is illegal,
invalid, or unconstitutional.
All inconsistent provisions of prior local laws adopted by the
Town of Wales are hereby repealed, but only to the extent necessary
to remedy the inconsistency.
