NY high court upholds municipal rights to ban hydrofracking within borders

Matt Richmond
July 1, 2014

In a 5-2 ruling, New York’s highest court has upheld the right of local governments to ban hydrofracking within their borders. The decision comes after a nearly three-year court battle over bans passed in the Towns of Dryden and Middlefield.

The highly anticipated decision from the Court of Appeals spread like wildfire Monday through groups on both sides of the fracking debate. Local anti-fracking activists like Otsego 2000 and the Dryden Resource Awareness Coalition hailed the ruling for offering protection to communities in New York. Others, like Environmental Advocates of New York and the Natural Resources Defense Council, cheered the decision as a rare example of local concerns winning out over a powerful industry.

Jason Leifer is the deputy supervisor in Dryden, one of the towns named as a defendant in the case. Leifer says the decision to maintain local control over where natural gas producers can operate was a no-brainer.

“The way the industry saw things was that they were going to make the decision and a few landowners were going to make the decision and not the people who have to live with the effects of fracking every day and that wasn’t right.”

At issue in the case was a part of the state’s oil and gas exploration law, known as ECL 23-0303, that gives the state the power to regulate the oil and gas industry. The lawyers for the plaintiffs argued that when a town bans the industry from operating in their borders, it is regulating the industry, and therefore breaking the law.

The majority of the judges agreed with the lawyers for the towns, saying the bans only dealt with where drilling is done, not how, so it’s not regulation.

The decision covers much more than the zoning laws in Middlefield and Dryden. Close to 200 bans and moratoria across the state should be covered by this decision. The bans were largely based on a legal rationale developed by the Ithaca-based Community Environmental Defense Council and so are all very similar.

Co-founder Helen Slottje says she expects to see many more towns take up their own bans.

“I think that this will you know be a really empowering, be a solid green light, to those communities that have been waiting for this sort of unequivocal confirmation.”

Slottje says the decision was broader than she had expected. When helping draft the laws, they decided to include all forms of drilling in the early versions. Both Dryden and Middlefield include conventional drilling, along with hydrofracking, in their bans. She says they were worried if they singled out fracking, the laws could be seen as covering how drilling was done, making it a form of regulation.
But the court appears to have given the go-ahead to zoning out fracking, while allowing other types of drilling.

“And that has been a concern in communities that wanted to allow traditional, vertical gas drilling but did not want fracking.”

Tom West is an Albany lawyer who argued for Norse Energy against Dryden. West says the ruling could have one positive effect for supporters of fracking in New York: prompting an end to the statewide moratorium.

“Maybe this will give the governor an impetus to decide to give it the green light, now that it’s going to be in a limited area of New York and only where the municipalities favor the development.”

Several municipalities in the Southern Tier, near the border with Pennsylvania where the industry is in full-swing, have passed resolutions in support of fracking.

But a statewide hold on fracking remains in effect. The state’s Department of Environmental Conservation says it is waiting for a review by the Department of Health to be completed. There is no timetable for the release of the final report, though many observers expect that it won’t happen until after the elections in November.