Natural Gas NOW
Efforts keep being made in New York and elsewhere to address the problem of rural areas dominated by an uniformed urban majority. Is there an answer? Maybe.
There’s another effort being made to break New York into autonomous regions within the Empire State. The idea, once again, is to find some way—any way—to break the terrible grip the urban majority now has an Upstate it loves for its beauty but hates for its people, supposing they’re all ignorant stump-jumpers. This initiative, though more well-intended than can be imagined, is unlikely to go much further than the several before it, Nonetheless, the growing interest in these movements reflects the desperation of an Upstate New York to free itself of the bonds of high taxes, insulting laws and land grabs. There may be an answer, but it’s probably not what you think.
The Republican assemblyman went out on a limb last month by introducing a bill that would divide New York into three autonomous regions, each controlled by its own governors and legislatures. He argues that what works for New York City is dragging the rest of the state into economic oblivion.
“Western New York, where I’m from, has the most population loss with 18- to 35-year-olds. Our kids are leaving the state in droves, the most anywhere in the country,” Mr. DiPietro said. “There’s no jobs. And New York City controls this.”
This isn’t secession. New York would still be one state but divided into three segments: New York City and its boroughs; the Montauk region, comprising the downstate counties of Nassau, Suffolk, Rockland and Westchester; and the rest of the state, dubbed “New Amsterdam.”
DiPietro isn’t wrong, of course. Upstate would be far better off as a distinct region able to set its own priorities and adapt its spending to its budget. But, his idea probably isn’t going anywhere because every governor wants as much power as he can obtain and would always veto such legislation, even if the legislature could be convinced to pass it. Still, there are other options.
Some of those options are laid out in a Notre Dame Law Review law journal article by Glenn Harlan Reynolds, a University of Tennessee College of Law professor and the editor of my absolutely favorite website, Instapundit. Here’s a bit of what he had to say:
[The] issue of intrastate secession is a growing one, and it would be helpful to address it, and perhaps to relieve the pressure, before things reach a more difficult pass. In fact, intrastate secession is the true secession fever: not the perennial post-election calls of losing parties to secede from a nation controlled by the opposition, but a growing movement for secession from states, with the rural parts of states (sometimes geographically very large parts of states) wanting to separate from the population-dense urban areas that essentially control state decision making. Feeling ignored, put-upon, and mistreated, secessionists want to take their fate into their own hands. These movements are common, but not likely to succeed on their own, as intrastate secession is, though not entirely unknown (see, e.g., West Virginia), very difficult to achieve.
But these movements do indicate a widespread sense of dissatisfaction among (mostly rural) populations who feel that they are governed by people in distant urban centers who know little, and care less, about their way of life…
Intrastate secession is not exactly new in the United States… But in recent years we have seen a number of states facing calls to split, from inhabitants of regions who feel effectively unrepresented.
In New York State, for example, there have been repeated calls to split upstate New York from the New York City region. One such proposal involves letting the New York City area keep the name “New York,” while the new upstate state would be named “New Amsterdam.” The reason? “We’re completely overwhelmed . . . by the policies of New York City,” according to New York State Senator Joseph Robach. The idea has been circulating for over twenty-five years, but now seems to be gaining some degree of additional support.
Nonetheless, there are things that both Congress and the states can do. Where Congress is concerned, the careful use of federal legislative powers, especially in sensitive areas like environmental and labor law, might restore to rural areas a sufficient degree of autonomy that secessionist sentiments, and general unhappiness, might be substantially reduced. In short, federal law often preempts state law on various grounds, and I suggest local autonomy as one more.
Federal laws regulating wages, working conditions, firearms, and environmental matters generally allow for states to pass more stringent laws governing themselves, in respect of state autonomy. But where the population of states is unevenly distributed, so that inhabitants of rural regions are effectively unrepresented, the autonomy thus preserved is lopsided. It is, in essence, the autonomy of a majority to make laws that an effectively unrepresented minority finds oppressive.
The federal government’s legislative role has traditionally been the opposite: to use (as in the case of the 1964 Civil Rights Act) a national majority to ensure that local majorities cannot oppress local minorities. I thus suggest that federal laws regulating these key subject-matter areas be recast to preempt more restrictive state laws, meaning that urban areas would be unable to impose stricter laws on less powerful rural areas… If the government of a county affirmatively wants to accept stricter state regulations, then it may do so; but if not, then the federal regulations are a ceiling, as well as a floor.
Given the expansive reach of federal legislative power today, states would have difficulty challenging this approach as beyond federal authority. And given the federal government’s traditional role, since the adoption of the Civil War Amendments, of protecting local minorities from oppression by local majorities, such an approach is not that much of a departure. It might even find support in an earlier part of the Constitution, the Guaranty Clause of Article IV, Section 4, which provides that the United States “shall guarantee to every State in this Union a Republican Form of Government.”
The Guaranty Clause is generally regarded (though perhaps wrongly) as providing no basis for judicial action, but it is listed among the powers of Congress as they relate to the states, and seems to grant sufficient legislative power for Congress to protect local interests from exploitation and domination at the hands of legislative representatives who do not represent them. As mentioned earlier, such complaints regarding the British Parliament and its domination of the American colonies were a centerpiece of the American Revolution, with deep resentment regarding rule by faraway representatives who did not share in the circumstances or values of the ruled. It is difficult to imagine the Framers regarding such domination by distant elites as part of a legitimately Republican form of government…
Indeed, the position of rural districts in heavily urbanized states looks very much like another classic case of representation-reinforcement in which “more searching judicial inquiry” is justified where legislation targets “discrete and insular minorities” and where ordinary political processes seem unlikely to provide relief. Inhabitants of rural parts of heavily urbanized states often have very different values and lifestyles, are generally stigmatized by the urban ruling class as “hicks” “rubes” and “rednecks ,” and lack comparable access not only to political power, but to media and other avenues that might be used to challenge the majority. Because their lifestyles and economic base are sharply different from inhabitants of urban areas, legislation that oppresses them can be enacted with limited impact on urban inhabitants…
There is nothing to stop a state from [also] being mindful of the differences between urban and rural areas when crafting legislation or regulations. States could adopt a local-option regulatory scheme relating to key subject areas on their own, and by doing so would lighten their footprint in rural areas and lessen the likelihood of festering resentments. It is possible that urban voters would resist this, but it seems equally likely that they might have little enough knowledge of, or interest in, conditions in rural areas that no significant resistance is forthcoming.
I cannot agree with Reynolds’ last point, as the urban majority thoroughly enjoys dictating policy to us rubes. The urban majority, in fact, imagines it’s more environmentally conscious than us and needs to teach us something whether we want to learn it or not. The truth is that the urban majority is as totally uniformed when it comes to the environment. They buy a lot for a second home in the country and wonder where the sewer line is. “A septic system? What’s that?” Or, as the wealthy restaurant owner who moved in a few years ago asked when the subject of forestry came up in conversation – “you want to cut trees?” I could cite a dozen examples, but you get the point. City dwellers are clueless when it comes to the natural environment. Yet, they demand the right to enforce their idea of how we should behave.
Still, Reynolds is onto the right approach, I think. I can see Congress setting a standard that allows counties to opt out of over-the-top state regulations that don’t fit rural areas. I can also envision an Article V convention of the states that would give real meaning to the Article IV guarantee of republican government within the states. Get 20 states to sign on (there are now 14 already signed on to such a convention) and you can bet Congress will see the handwriting on the wall and want to quell the opposition to the tyranny now taking place in New York and other urban majority states. Because there are more rural states than urban, the convention is a real possibility.
How does all this relate to natural gas? Well, consider fracking. Wouldn’t it be nice if Upstate could opt out of the New York ban, which is nothing more than stretched interpretation of the Clean Water Act by a DEC charged with its enforcement in the Empire State? Wouldn’t it be nice if Upstate could decide whether the Northern Access Pipeline should be subject to DEC’s bizarre manipulation of the water quality certification provisions of that same act?
I’m oversimplifying things for the sake of making my point, but it is the direction of things that matters. If we had some Federal rules that forced urban majority states to consider the impacts on rural populations, we’d see a change in the direction of agency and court decisions. We’d see FERC and the 5th Circuit Court of Appeals coming to the table quicker to deal with the DEC/Cuomo abuse we saw with the Constitution Pipeline. It would be far more difficult to enact a fracking ban using Joe Martens and Howard Zucker as props in a Cuomo clown show.
I say, let’s go for it. Thank you, Glenn Reynolds!
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