When Do Public "Rights" Become Public "Wrongs"?

Gas drilling is not a harmless activity. Read all of the latest available facts. There are enough to fill volumes. The issue goes deep - to the very essence of our American values, to our so-called "inalienable rights." But whose rights?

The question is, do individual property owners have the right to allow their land to be used in ways that pollute our shared air and soil, subject our water to chemical contamination, industrialize our landscape, kill off our wildlife, subject us to excessive noise and light, disrupt our daily activities, compromise our health, decrease our property values and diminish our quality of life?

Some people believe that their property rights give them absolute control over what’s “theirs.” They think that they can do anything with their land, even if those actions hurt others.

Private property rights are being used and abused to harm our environment. However, traditional property rights do not include uses that unreasonably adversely impact the property rights of another private party (the right of quiet enjoyment) or uses that unreasonably interfere with public property rights, including uses that denigrate public health, safety, peace or convenience.

Jean-Jacques Rousseau wrote "The first person who, having enclosed a plot of land, took it into his head to say "this is mine" and found people simple enough to believe him, was the true founder of civil society. What crimes, wars, murders, what miseries and horrors would the human race have been spared, had someone pulled up the stakes, filled in the ditch and cried out to his fellow men: 'Do not listen to this impostor. You are lost if you forget that the fruits of the earth belong to all and the earth to no one!"

This is in keeping with a Native American idea that the Earth does not belong to man, but rather man belongs to Earth. Rousseau argued that property rights divide man by focusing on self-interest and greed rather than on the good of society. With every right comes a responsibility and we need to seriously re-think our behavior if we are to survive. The following is an excerpt from the National Trust for Historic Preservation website (www.preservationnation.org/):

“The U.S. Constitution does not give property owners the right to abuse the land or to use their property in a way that hurts others. Indeed, zoning-based restrictions on land use were first created to protect the property rights and values of property owners against the potentially harmful actions of other property owners.”

So then, the questions are: Can the well-documented nasty, noxious effects of gas drilling and the fracking process be confined within the boundaries of the lessor’s property? Can the polluting effects of open vaporization pits, non-stop diesel engines, water-tainting chemicals, incessant ear-splitting decibels, 24-7 roaring, jaw-rattling, road-destroying tractor-trailer traffic and the other by-products of heavy industry be contained so that neighbors, neighborhoods, lakes, streams, rivers and entire geographic areas aren’t adversely affected? The answers are, of course not!

While these issues are important wherever gas drilling is occurring or contemplated, it has a special significance here, in and along the Upper Delaware River Corridor and its environs. The National Park Service describes the Upper Delaware on its website (www.nps.gov):

“Rolling hills, riverfront villages, and bald eagles perched on trees form a vibrant backdrop as the Delaware River snakes gracefully through the rural countryside. But the story of the Upper Delaware is more than just a collection of beautiful pictures. We enjoy the river's recreational opportunities while it supports a healthy ecosystem for wildlife and provides water for over 17 million people.”

Another quote, from the National Wild & Scenic Rivers Act [Section 1, part (b)], says:

“It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. The Congress declares that the established national policy of dam and other construction at appropriate sections of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes.”

Robert F. Kennedy Jr., in his book, Crimes Against Nature (HarperCollins Publishers, 2004), discusses the use of the “public trust,” or commons as defined centuries ago in Ancient Rome’s Code of Justinian – shared resources that cannot be reduced to private property, including the air, flowing water, public lands, wandering animals, fisheries, wetlands, and aquifers.

As late as 1913, the U.S. Supreme Court declared that it was “inconceivable that public trust assets could slip into private hands.” These public trust rights to unspoiled air, water, and wildlife are for everyone. We all have the right to use the commons, but never so as to injure its use and enjoyment by others. Simply put, ruination of the commons by private property owners whose land is, from their viewpoint, serendipitously perched atop the Marcellus Shale, is not acceptable and must not be allowed.

As important as legal measures are to protecting the environment, this alone will never solve the problems we are facing, especially as respects gas drilling. It is easy for everyone to rally around the power-line issue because no individual property owner stands to gain from this activity. But when property owners can realize windfall profits from the far more serious activities of gas drilling, we suddenly become a community divided. Here is where the legal right becomes a moral issue. If we, as a culture, lose respect for the rights of all beings, if we lose respect for the health and well-being of the planet which is home to all of us, then we will continue to face more and more threats to our very existence as a community.

There may be those who are struggling to make ends meet and the money from a gas lease looks like a gift-horse. But at what price? If enough people think this way, it could be the beginning of the struggle for survival for all of us.

There is a Native American quote that goes, "Continue to contaminate your bed, and one night you will suffocate in your own waste." If we surrender our communities to gas drilling, this will have become prophecy.