Home Rule case could still go to Court of Appeals, say attorneys

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May 3, 2013

The state’s second highest court, the Appellate Division for the 3rd Department, has ruled in favor of New York towns with bans on gas drilling. In two decisions released Thursday, a four-judge panel ruled unanimously in favor of the Towns of Dryden and Middlefield.

Earthjustice attorney Deborah Goldberg argued for the Town of Dryden. She says the unanimous decisions put to rest the question of whether New York towns can ban drilling.

“I think that it’s quite clear that there is no dispute among them and there should be no dispute generally on this issue,” says Goldberg.

The defendants relied on a case called Frew Run which said towns in New York can ban gravel mines within their borders.

Plaintiff’s lawyer Tom West says the court was wrong to determine the state’s energy policy based on a decision about gravel mines. As a result, they might appeal to the state’s highest court, the Court of Appeals, where that gravel mining case was decided.

“They need to correct what they said in that case and define its limitations,” says West.

West added that allowing towns to ban drilling will keep the industry from ever fully developing in New York.

While about 150 towns have either banned or placed a moratorium on drilling, many town boards in the potentially gas-rich Southern Tier have expressed support for drilling. West says allowing local bans makes industry investment too risky, even where it’s supported for now.

“So if you’re an operator and you want to spend tens of millions or hundreds of millions of dollars acquiring mineral rights in a group of towns, only to have those towns decide by a 3-2 town board vote that they want to ban oil and gas development, you’re going to look like you were very imprudent in your decision making," says West.

A statewide hold on fracking has been in place for five years while the Department of Environmental Conservation completes its environmental review.

Deborah Goldberg of Earthjustice says local control over industry is the way things have always worked in New York, no matter what the DEC decides.

“It leaves open the opportunity to operate where they’re welcome instead of you know forcing themselves down the throat of people,” says Goldberg.

Goldberg says the Court of Appeals may still take the case because it’s such a high-profile issue.