Reprinted with permission from Re-ENERGIZE BUFFALO for "All things GREEN: Energy, Environment and Economy".
On February 21, 2012, New York Supreme Court Justice Phillip R. Rumsey ruled in favor of the Town of Dryden, affirming its right to adopt zoning that prohibits natural gas drilling within its borders in Tomkins County.
In August, Dryden's town board had passed a zoning law prohibiting gas drilling within town limits. The next month, a gas drilling company, Anschutz Exploration Corp., sued the town, saying the ban was illegal because state law superseded the municipal rules. In the case of the drilling company against the Town of Dryden, Judge Rumsey concluded that the town zoning ordinances is not preempted by New York State Oil, Gas and Solution Mining Law.
ProPublica reported that two very similarly worded laws govern the regulation of mining and oil and gas drilling. The oil and gas provision gives the state the power to "regulate the development, production and utilization of natural resources of oil and gas." The Town of Dryden argued that it was not trying to regulate fracking but merely trying to protect its citizens and property. It pointed out that courts have allowed towns to ban mining, and said Dryden should be allowed to do the same for fracking. The justice agreed, concluding that the state's oil and gas laws don't prohibit localities from barring drilling.
The decision sets a precedent that citizens and their local governments can cite to legally ban gas drilling in other New York towns.
"By upholding Dryden's fracking ban, Judge Rumsey has brought a renewed sense of hope to the many cities and towns concerned with fracking. Regardless of fracking's documented dangers--particularly New York's failure to study industrial gas drilling's health impacts or responsibly plan for the treatment, transport, or disposal of hazardous fracking waste--the communities targeted for drilling need the power to determine for themselves when, where and if fracking is permitted," said Katherine Nadeau, Water & Natural Resources Program Director, Environmental Advocates of New York.
It didn't take long for a different Supreme Court judge to arrive at a similar ruling in favor of another New York town.
On February 24, Otsego County Acting Supreme Court Justice Donald Cerio ruled that the Town of Middlefield was within its rights under state law to ban oil and gas drilling. Justice Cerio wrote in his decision that the clause in the state’s environmental conservation law that transfers regulatory rights to the state for oil and gas drilling does not prevent the town from banning it altogether.
While those opposed to fracking in New York are savoring these victories for home rule, the legal battles are likely not over. An attorney representing the gas drilling companies who were defeated in the courts discusses the cases and potential appeals in a news interview here.
John Cunningham ¦
Sunday 4 March, 2012