Primer on Public Law #1
SOVEREIGN PEOPLE'S ACTION NETWORK (SPAN) AND FRACKBUSTERS NY
HAVE PRODUCED NY PUBLIC LAW #1
CRIMINALIZING FRACKING, CORPORATE FRACKERS
AND FRACKING-RELATED ACTIVITIES
Here is a primer on the law.
1. What is hydrofracking?
Our law defines hydrofracking in two ways:
As a technology for the extraction of gas, oil or water, it is destructive to public health, the environment, our communities, economic stability and jobs.
As driven, imposed and implemented by business corporation directors enabled by two centuries of constitutional privilege, corporate hydrofracking is destructive to self-governance and to the integrity of the body politic. In sum, corporate fracking constitutes an assault upon the Earth and upon people aspiring to govern ourselves.
2. What's been going on in New York since a handful of corporate directors revealed their intention to frack our state?
People everywhere have been teaching themselves and others what corporate fracking is all about. Many have seen the violence, destruction and divide-and-conquer that "regulated" and "permitted" corporate fracking has imposed on communities in other states. Tens of thousands of aroused, enraged and determined New Yorkers have formed hundreds of anti-fracking groups. Seeking to prevent this latest corporate invasion and assault, many people and groups have invested enormous amounts of time and energy in the Department of Environmental Conservation’s hearing and permitting processes.
We've concluded that the DEC is a diversion, an energy sink.
3. A diversion? An energy sink?
Yes. Regulatory agencies exist because of the failure of valiant people's struggles in the 19th and early 20th centuries to prevent constitutionalization and legalization of government-by-corporate directors. The DEC, like other state and USA regulatory agencies, was designed to issue permits to industrial corporation directors, in order to crush citizen opposition. DEC officials assume that corporate directors' private decisions serve the public interest. As regulators, their assignment is "to mitigate" corporations' worst harms, to "lessen" corporate "impacts," and to keep corporate violence and destruction at what DEC officials define as "acceptable" levels. DEC hearings are for competing geologists, hydrologists, and geophysicists. These hearings are not political arenas where a sovereign people can debate – and decide -- the future of our communities and of our state. The DEC's decision-making process is an assault upon democratic self-governance: even if 15 million New Yorkers demanded that the DEC issue no permits, no mechanism in the DEC law -- or in regulatory tradition -- compels the DEC commissioner to obey the will of the people.
4. Why not try to strengthen DEC laws, to beef-up DEC authority over corporate fracking?
We believe that the DEC is an illegitimate agency for any discussion, deliberation, or decision on energy policy and technology for New York. Legislative and judicial histories of regulatory law and regulatory agencies reveal the true purpose of these agencies. They are about legalizing corporate invasions of our communities. Regulatory agencies cannot be fixed, tweaked, improved. They are tools of the Corporate State, of governance-by-the-few, not governance of the many.
5. Why did SPAN & FrackBusters NY write our own law?
No state legislator has revealed the slightest interest in writing a law to prohibit corporate fracking of NY by criminalizing fracking, corporate frackers and fracking-related activities. We find this hard to understand, since the traditional way that any community prevents what majorities define as harmful, anti-social behavior is by enacting laws criminalizing such behavior and by imposing deterrent-level penalties.
6. So this law will be part of New York State's Penal Code?
Yes. Chapter 40, Title A, states that "the general provisions of this chapter are: (a) To proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests.
(b) To give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction.
(c) To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the public interest."
We believe our law criminalizing fracking is historically, constitutionally and legally sound. It is also rational, logical, essential and sane.
7. What about industrial, financial and other corporations found guilty of fracking? How will this law punish them?
Section 20.20 of the Penal Law reads: "A corporation is guilty of an offense when ...(b) the conduct constituting the offense is engaged in, authorized, solicited, requested, commanded, or recklessly tolerated by the board of directors or by a high managerial agent acting within the scope of his employment and in behalf of the corporation..."
Our law declares that "It shall be a Class C felony for any person, corporation, or syndicate, State entity or State employee (elected or appointed) to engage in fracking." (Section 6a). The law goes on to declare that if a business corporation is found guilty of fracking and/or a related activity, a court "shall assume that all members of the corporation's board of directors...and the CEO, CFO, president and vice president possessed full knowledge of the crime... Therefore all members of the board of directors and the abovementioned officers must be found guilty...sentenced to imprisonment and fined..." (Section 7a). Our law specifies fines and jail sentences that judges must impose upon the guilty.
8. So you want to move debate and decision-making about fracking out of an illegitimate DEC and into the Legislature? When did the NY State Senate and Assembly become paragons of democracy-in-action?
Alas, we have no illusions about our NY State Legislature. Both the Senate and the Assembly are minority-rule bodies, run as tyrannies. Most legislators have long since embraced corporate values and perspectives. That's why we are clear that a powerful people's movement across NY State will be essential to compel our elected legislators to pass this law. But in contrast to regulatory agencies such as the DEC, we have governance theory and history on our side. Legislative bodies are where self-governing people drive our values and needs into law. This is where we must go to prohibit corporate fracking. If this means we will have to remake our Legislature, and our legislators, so be it.
9. But why criminalize fracking, make fracking a felony?
New York State charters business corporations or gives out-of-state corporations "certificates of authority" to operate in NY for "any legal use”.
NY's public officials are bound to assist and enable all legal businesses.
In NY, fracking and fracking-related activities are regarded as legal. In addition, over the past 150 years, legislators and judges have been greatly privileging business corporations and their directors, while stripping municipal corporations of genuine governing authority. So when today’s corporations and their directors engage in "legal" activities, they are pretty much unstoppable. Backed by vast accumulated wealth, they wield the law of our State, and the law of the United States, against people, communities and the Earth. It is therefore essential that we pass this law making fracking a felony.
One more thing: in the DEC hearing process, corporate agents are there as participants. When the State of New York will try corporations and corporate agents for violating criminal law -- for committing felonies, these corporations and corporate agents will be in the courtroom as defendants. Nice difference, eh?
10. Will building a mass movement across NY State to enact this law split anti-fracking people and groups?
No, on the contrary. This law will unite the hundreds and hundreds of groups, the multitudes of New Yorkers who do not want NY to be fracked. Corporate operatives, our governor and our legislators are the ones who are splitting the body politic by classic divide-and-conquer techniques. Legislators have introduced a variety of bills to deal with one little piece of fracking at a time: water withdrawal, frack fluids and wastes, trucking, etc. All in regulatory context and in regulatory language to "mitigate" harms -- while “permitting” this deadly corporate activity.
Over the coming months, other legislators will introduce more bills to deal with more minutiae. They will hold hearings, issue press releases, and declare that their bills are essential. Who among us will be able to keep up with them? Doesn't it make sense, instead, for anti-frackers around the state to unite around a single law that when enacted, will actually accomplish what we want? What we know the Earth needs?
11. What about S4220? The senator who introduced this bill calls it a "ban."
Yes, Senator Avella's proposed law, S4220, is being presented as a "ban." Many people who oppose fracking want to support S4220.
We believe it is crucial that anti-frackers scrutinize this bill, and other bills touted as bans, with great care.
We've studied S4220. It is not a true ban or prohibition.
Why? Nothing in the bill prohibits fracking or corporate frackers from NY State.
It does not prohibit corporate water withdrawals for fracking, or the importing/dumping of frack fluids and wastes into the State. It does not prohibit operation of fracked wells that the DEC has already permitted. It does not deal with the pro-fracking actions of the Delaware River Basin Commission. It provides no penalties for public officials who allow or enable fracking, or for corporate directors who frack because somehow they obtained permits.
And, S4220 keeps the decision-making within the regulatory agency, where the DEC Commissioner, appointed by the Governor, is invested with vast discretionary authority. All top officials there are appointees of the governor.
NY Public Law #1 rips decision-making authority from the DEC. It redirects the people of NY where we belong, into our state legislature. That's where laws are made that define what's "legal" and "illegal." That’s where We the people are supposed to decide appropriate punishments for anti-social behaviors. That's where self-governing people make the rules.
12. Sounds exciting. But building a powerful statewide struggle to force our legislators to act will take time. Meanwhile, the DEC will soon be giving corporate directors permits to frack. How can fracking opponents in good conscience stop trying to influence the DEC?
Foes of fracking should do what they believe will bring about the results they want. We in SPAN and in FrackBusters NY have concluded that there is nothing New Yorkers can do that will prevent the DEC from permitting corporate fracking in our state. So we are taking a different path. We will be mobilizing across the State letting people know about our law to make fracking a Class C felony. We will be encouraging people to solidify their local and regional bases, strengthen their organizations, and join with others across NY to compel elected legislators to obey the will of the people.
When people who have chosen to invest their time, energy and hope in the DEC decide to join our struggle, they will be totally welcome.
13. Hmmm... What about the next dumb, anti-Earth and anti-democratic corporate energy idea? Will work on this criminalization law help us then?
Good question. The people of NY State must grapple with energy policy, must make decisions for the future. We'll have to study and debate energy supplies and technologies. We’ll also have to ask: energy for what?
We believe that energy policy is not the private property of corporation directors or our politicians. Energy policy must be public policy. Choosing technologies and systems to ensure just and thriving communities is We the People's responsibility. After all, energy decisions will shape our communities... will shape our State... will determine whether we ravage our natural systems and damage our children, or whether we live in harmony with the Earth and other species.
An energized, informed, united, empowered and sane energy movement in New York State can make this criminalization law a reality. Then, we can instruct our legislators what they must do next. It will help make sure that we the many people -- not a few corporate directors – make these decisions in the future.
Draft Oct. 31, 2011