An article in the Sullivan County Democrat a couple of weeks ago reported that the Town of Bethel has decided not to go ahead with the road use preservation law proposed by the Multi-Municipal Task Force (MMTF), of which it is a member, on the grounds that the law stands on shaky legal ground.
I am not a lawyer, but the town’s position on the legality of the proposed law puzzles me, in light of the New York State Department of Environmental Conservation’s (DEC) SGEIS on horizontal hydrofracking issued in September of 2011. That document concludes that damage to local roads is a major adverse impact to be expected from the heavy traffic associated with fracking, and proposes as mitigation laws and road use agreements that sound almost exactly like the model law produced by the MMTF (See the DEC SGEIS at http://www.dec.ny.gov/data/dmn/rdsgeisfull0911.pdf, starting on hard-copy page 7-137, digital pdf page 987.)
Nor can one argue that the DEC simply ignored legal issues; indeed, it cites chapter and verse of New York State transportation law in order to provide the basis for its suggestions. For one example, on page 7-137, it says:
“NYS Vehicle and Traffic Law § 1640(a)(5) provides that, 'The legislative body of any city or village, with respect to highways … in such city or village … may by local law, ordinance, order, rule or regulation … exclude trucks, commercial vehicles, tractors, tractor-trailer combinations, [and] tractor-semitrailer combinations from highways specified by such legislative body.” Part 10 of this same section allows legislative bodies of a city or village to 'establish a system of truck routes upon which all trucks, tractors and tractor-trailer combinations, having a gross weight in excess of ten thousand pounds are permitted to travel and operate and excluding such vehicles and combinations from all highways except those which constitute such truck route system.' Part 20 of this same section allows for the establishment of weight, height, length, and width criteria, for which vehicles in excess of such standards may be excluded from highways or the setting of limits on hours of operation of such vehicles on particular city or village highways or segments of such highways.”
Nor is the DEC alone in believing that road use laws and agreements of the type proposed by the MMTF are legitimate. New York Municipal Insurance Reciprocal (NYMIR) also has a supportive document online at http://www.nymir.org/pdf/NYMIR%20Marcellus%20Roads%20FINAL.pdf.
Among the many municipalities insured by NYMIR are a number of towns in Sullivan County, and one of the things it insures them against is lawsuits. In other words: if people do sue towns that adopt the road use preservation laws, NYMIR will have to pay up. So it is highly motivated to squelch any laws that it thinks may be challenged.
Instead, the NYMIR document devotes an entire section to providing the authority in law for local road use laws and agreements such as those described in the SGEIS (and the MMTF), starting on page 3. In defense of provisions that require road users to pay for repairs of any roads they damage, the NYMIR document cites Highway Law Section 320 in saying, “From a legal standpoint, the Highway Law has long held those responsible for injuring the highways liable for the damage that they have caused.” Like the DEC, it also enumerates a variety of relevant local powers derived from the NYS Vehicle and Traffic Law, supporting for instance the right to establish certain haul routes, implied in municipalities' right to “Exclude Certain Vehicles based upon weight, length, height or limit hours of operation (N.Y. Veh. & Traf. §§ 1660(a)(28), 1650(a)(4-a), 1640 (a) (20).”
According to the Democrat article, it was sections of this precise same law that were cited by the Town of Bethel as being of concern, specifically 1600 and 1604. Do those sections somehow offset or override the other sections I have quoted? Let’s look.
Section 1600 says “The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein.” But note, it is not municipal road use laws that have to be uniform; rather, it is the provisions of the state law, of which this is a section, that have to be applied uniformly. And those provisions, as we have seen from the quotes above, specifically permit any municipality to construct its own road use laws. They also contain some strictures to which all such laws must conform: for instance, though any town may exclude certain vehicles from designated roads, all towns must make exceptions for deliveries and pickups of property along the designated highways. But the uniformity described here has nothing to do with disallowing towns to come up with a variety of different local road use laws.
What about section 1604? Admittedly, it contains the assertion that local authorities have no power to restrict vehicle operators’ free use of the road. But that assertion is preceded by the opening clause: “Except as otherwise provided in this chapter." And we've already seen some of what is “otherwise provided in this chapter," namely section after section supporting the rights of local municipalities to create road use laws and agreements restricting traffic of certain designated types.
The one issue for which I have not been able to track down any legal basis is the idea that municipalities have the power to require companies to pay to upgrade roads before using them. However, the proposed road use law, at least in the versions posted on the Tusten and Highland websites, actually offers two options: requiring a company to pay to upgrade roads on its haul routes before it starts operations—in which case it would not have to pay for repairs afterwards—or requiring it to pay for repairs after damage has occurred. It is not clear to me what determines which option is chosen, but it looks as though, if a company refuses to pay for an initial upgrade, it can still be held accountable for any damage incurred after the fact -- for which, according to NYMIR, there is strong basis in law.
I don’t know all the legal points the Town of Bethel is concerned with, and I may well have failed to cover some of them here. But on the basis of the information I've found, it's hard to agree that there is a serious legal problem with the proposed road laws.
The New York State Vehicle and Traffic law can be read in its entirety at http://ypdcrime.com/vt/index.htm.