The Catskill Chronicle

To The Editor:

Almost from the beginning of the ongoing argument over gas drilling, proponents of the process have been asserting the notion that it is their right under the United States Constitution to use their property as they see fit, including to lease it for drilling. Some have even gone so far as to say that protecting this right is the only reason they are in favor of drilling.

Several candidates for local office, including some I consider friends, have voiced the argument in this newspaper.

Those who know me will attest to the fact that I am as much a proponent of property rights as anyone, but the fact of the matter is that this is a fallacious argument.

The Cato Institute, co-founded by Charles G. Koch, is a respected libertarian think tank that, not surprisingly, clearly states in its Handbook for Policymakers its full-fledged support for property rights. Section 34 of the 7th edition of that handbook, is entitled “Property Rights and the Constitution” and begins with the statement “America’s Founders clearly understood that private property is the foundation not only of prosperity but of freedom itself.”

It goes on to say in that section that “the uses [of property] that are legitimate are those that can be exercised consistent with the rights of others.”

And quoting further (emphasis added), “the common law limits the right of free use only when a use encroaches on the property rights of others, as in the classic law of nuisance or risk. The implications of that limit, however, should not go unnoticed, especially in the context of such modern concerns as environmental protection.

“Indeed, it is so far from the case that property rights are opposed to environmental protection — a common belief today — as to be just the opposite: the right against environmental degradation is a property right.

“Under common law, properly applied, people cannot use their property in ways that damage their neighbors’ property — defined, again, as taking things those neighbors hold free and clear. Properly conceived and applied, then, property rights are self-limiting: they constitute a judicially crafted and enforced regulatory scheme in which rights of active use end when they encroach on the property rights of others.”

So, regardless of where one stands on the gas drilling issue, the notion that one has a clearly defined constitutional right to lease their property for drilling is just wrong. While there might someday be circumstances where the extraction of natural gas from shale is done in such a way as to pose negligible risk to the environment and to the property — including land, water and air — of those neighboring the drilling site, that is not the case today, and therefore even by the most libertarian of interpretations, no such property right exists.

John Conway
Barryville, NY