Editor’s Note: This article was written by Leslie Danks Burke, an attorney in the Ithaca area who ran for U.S. Congress in New York’s 23rd district in 2012.

It was written in response to an article recently published in the Ithaca Voice, “Ithaca area’s Congressman: N.Y. should pay for damage done by fracking ban.”

To write a response, contact me anytime at jstein@ithacavoice.com.

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“When government gets out of its rightful lane, people get hurt,” writes Congressman Tom Reed in a March 23 op-ed. He offers this as a dubious defense of his own drift out of the federal lane to interfere with state law.

Mr. Reed has introduced the so-called “Defense of Property Rights Act,” a proposed federal law to undo New York State’s fracking ban by making the ban overwhelmingly expensive. In a nutshell, Mr. Reed wants New York State to pay landowners for shattering dreams of gas-induced riches.

Leslie Danks Burke (Submitted photo)

Among several problems with Mr. Reed’s idea, two glaring concerns stand out. First, it disregards powers held by states and expands the scope of federal government. Second, it attempts an end-run around at least a century of jurisprudence on the Constitutional law of “takings.”

The Constitution does not give Congress free-standing power to undo state-level decisions. Sometimes, where the Commerce Clause is triggered, for example, Congress may step in to regulate “economic activity,” which has a certain legal definition. But shoehorning a supposed right to drill into the Commerce Clause is on the outer edges of federal power and may be unconstitutional. It’s certainly the sort of law that a Congressman who believes in limited government should not support.

Mr. Reed says expansion of the federal government is necessary in this instance to “promote accountability and responsible policymaking” at the state level.

Let’s roll with the idea that it’s part of a federal representative’s job to reach into state law and regulate payment burdens that aren’t there. The next problem is that the payments Mr. Reed wants to force are not “rights,” as much as he wishes they were in the Constitution. Mr. Reed knows this. He says he’s “forcing the government to provide compensation to affected property owners . . . Today, those individuals are not eligible for relief.” His legislation would create new government payments.

It’s a basic tenet of “takings law” that the government may only take private property for public use, and it has to pay the property owner first. If the government takes land to build a highway, for example, the owner must be paid.

Should the government pay the property owner if it doesn’t actually take the land, but instead issues regulations that limit how the owner uses the property? Sounds kind of reasonable on the surface. But what if a homeowner wants a lucrative truck stop in his back yard, yet the village does not allow truck stops in residential neighborhoods? Do we want that owner to sue the village for payment, because his truck stop can’t go in? What if a developer wants to build a spa resort complete with a tranquility pond, but the only property he owns is in the middle of a noisy shopping center? Does the city owe the developer money because he is unlucky enough to own land in a shopping center zone instead of a placid field?

The US Supreme Court says if the property owner is still able to make profitable use of his property, even if not the dream use, a regulation does not trigger the need to pay the owner.

Mr. Reed wants to overturn the Supreme Court’s Constitutional interpretation by statute and expand the government into paying property owners for things like zoning law changes and fracking bans. But Constitutional law does not get changed through legislation, and I’d be surprised if Mr. Reed doesn’t understand this. More likely, he’s drifting into state policy to score quick political points.

“I will continue pressuring [Governor Cuomo] to reconsider his state-wide ban on natural gas development,” says Mr. Reed. So far, Governor Cuomo appears to be staying the course despite Mr. Reed’s intrusion – perhaps the best approach when a federal representative gets out of his rightful lane. We don’t want anyone to get hurt.


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Jeff Stein

Jeff Stein is the founder and former editor of the Ithaca Voice.