N.Y.'s Highest Court Says Towns Can Ban Fracking

Towns in the Empire State can legally prohibit high-volume hydraulic fracturing on their own terms with local land-use laws, according to a decision handed down this morning by the state's highest court in a 5-2 vote.

The New York Court of Appeals sent a clear message to those who have challenged the right of municipalities to decide for themselves on the drilling technique, often referred to as fracking. The court upheld lower court decisions that asserted the towns of Dryden and Middlefield did not overstep their authority in enacting bans on fracking.

The court looked at appeals related to both towns and said they were within their right to block natural gas and oil activities through the adoption of targeted zoning laws.

"We conclude that they may because the supersession clause in the statewide Oil, Gas and Solution Mining Law does not preempt the home rule authority vested in municipalities to regulate land use," wrote Judge Victoria Graffeo in the majority opinion, agreed to by four other judges.

Two judges sided with landowners and industry in a dissenting opinion, agreeing with their argument that the question of whether to permit fracking should be decided at the state level through the Department of Environmental Conservation. The DEC is still in the middle of a yearslong analysis on that exact question, with Gov. Andrew Cuomo (D) still undecided on his ultimate view.

The cases were listed initially as Anschutz Exploration Corp. v. Dryden and Cooperstown Holstein Corp. v. Town of Middlefield, with many parties intervening, including Earthjustice, which argued in court on behalf of the towns.

In a statement, Dryden Deputy Supervisor Jason Leifer proclaimed that the court had upheld a municipality's right to self-determination. He said the towns emerged victorious despite an all-out financial commitment from energy companies and landowners to win the case.

"It is clear that people, not corporations, have the right to decide how their community develops," he said.

The case could have reverberations across the country as well as within New York with a victory handing ammunition to community fracking battles in several other states, including Colorado, Ohio, Pennsylvania, Texas and California. Moreover, it looks like the court may have upended the ongoing regulatory process through the Cuomo administration, because even if the state approves permits, local governments opposed to fracking could supersede that rule.

Deborah Goldberg, the Earthjustice attorney who represented Dryden before the court, noted that at least 170 New York municipalities have passed measures that look to limit oil and gas activity in some form. She said it has been left to towns and villages to "fill the gap" in the absence of direct state rules on the drilling method.

"For too long the oil and gas industry has intimidated and abused people, expecting to get away with it," she said. "That behavior is finally coming back to haunt them, as communities across the country stand up and say 'No more.'"

One of the industry attorneys involved in the case said he was "disappointed with the decision."

"A lot of landowners are going to have very valuable rights taken if municipalities ban all development of that resource," said Tom West, an attorney representing industry in the case.

The issue in New York and several other states centers on whether local zoning authority reserved for municipal governments is pre-empted by state law that regulates the oil and gas industry. In the Dryden case, the state had jurisdiction over ensuring that drilling operations are "efficient and effective," but the town retained authority to use zoning powers to decide where drilling happens.

A similar argument played out recently in Pennsylvania, where a 2012 state law directed local governments to change their zoning laws to allow oil and gas development everywhere, regardless of designated zones for schools, residences and the like. The Pennsylvania Supreme Court overturned the provision, finding that it disrupted rational zoning regimes and violated the state constitution's environmental rights section by not allowing local governments to protect their local environments (EnergyWire, Dec. 20, 2013).

Colin Sullivan, E&E reporter

Republished from GreenWire with permission. GreenWire covers the energy and environmental policy news. Click here for a free trial

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