ALBANY – Like most issues that concern fracking, a sharp division in sentiment followed Monday’s ruling by the state’s highest court that sided with two towns in upholding their right to ban the drilling through zoning ordinances.
Opponents of the extraction method for natural gas called hydraulic fracturing hailed the court’s decision as “a victory for people throughout the state.”
Pro-industry officials and landowners who stood to gain financial windfalls from gas company exploration on their land said the state Court of Appeals overreached in a decision that they say infringes on the right to use private property as the owners see fit.
“The rights of the state and its experts at the Department of Environmental Conservation to make decisions concerning the production of New York’s domestic resources has been obliterated by the court in favor of a ‘not in my backyard’ mentality,” said Dan Fitzsimmons, president of the Binghamton-based Joint Landowners Coalition of New York.
Opponents of fracking don’t see it that way. They say the court’s ruling reinforced a widespread populist movement that wants no part of such drilling in the Empire State.
“This is a huge victory for people power,” said Rita Yelda, a local organizer from Food & Water Watch.
Yelda said the group’s mission is far from over, especially since positions can vary from one town to another depending on the municipal board’s political makeup.
“Unfortunately, pollution does not know municipal boundaries, and that’s why the state needs to impose a statewide ban on fracking,” Yelda said.
Buffalo Niagara Riverkeeper also praised the ruling by the state’s highest court.
“Specific to this case, respecting the right of home rule keeps critical land use decisions and authority within local municipalities to protect the health and safety of their citizens and natural resources from the impacts of high volume hydraulic fracturing,” said Jill S. Jedlicka, Riverkeeper’s executive director.
Localities along with environmental and energy interests have kept close tabs on the case.
The issue? Were the two towns – Middlefield in Otsego County and Dryden in Tompkins County – within their rights to use local zoning ordinances to ban fracking?
The Court of Appeals, in a 5-2 decision, said they could.
The court said nothing in the state’s oil and gas statute pre-empts a locality’s right to ban certain kinds of land uses.
The case was brought by Norse Energies, which had rights to about 22,000 acres of land that it wanted to use for oil and gas exploration and drilling. It challenged Dryden’s ban, saying the town exceeded its legal authority. The company has since gone bankrupt, but the case was merged with one brought by Cooperstown Holstein, a dairy farm in Middlefield that had signed a deal with a private company for gas drilling on its land.
For the natural gas industry, as well as landowners who have sold or leased drilling rights, the decision represents a major financial blow and one that will send a chilling effect to the industry about its prospects for doing business in New York State.
Gov. Andrew M. Cuomo now finds himself in the middle of the issue and is again taking heat from both sides.
Cuomo, now nearly four years in office, still has not decided whether to lift a state moratorium on new fracking operations, a move that industry critics say is costing the state thousands of jobs.
Scott R. Kurkoski, the Southern Tier attorney who represented dairy farmer Jennifer Huntington of Cooperstown Holstein against Middlefield, said that his client’s “brave and tireless efforts” were aimed at protecting landowners’ rights across the state and that Monday’s court ruling only reinforced the need for “real leadership from our state.”
“Our governor and attorney general completely failed to weigh in on this important issue affecting New York,” Kurkoski said.
“Once again, our governor has remained silent while New York squanders the best opportunity for energy independence we have seen in our lifetimes.”
Those in favor of gas development want to see the administration complete the long-awaited health and environmental studies to allow fracking to move forward in the towns that favor it. On the other side, people such as like Yelda are calling for the wholesale ban of the practice statewide.
“As other states roll over for a very deep-pocketed fracking industry, communities throughout New York, large and small, have challenged them and won,” said Katherine Nadeau, policy director at Environmental Advocates, an umbrella organization to New Yorkers Against Fracking. “The fracking industry has spent millions to bully our state, even sending a team of lawyers to strip away the rights of communities who have chosen to ban fracking within their municipal lines.”
Prior to Monday’s decision, lower courts already ruled in the cases that bans on certain industries done through local zoning laws are not preempted by New York’s Oil, Gas and Solution Mining Law, which the two plaintiffs argued should prevent localities from enacting a hodgepodge system of fracking bans by having a single state law set out the terms for gas drilling in New York.
The Court of Appeals decision upheld those lower court rulings. Dryden, in 2011, banned any activities related to natural gas exploration or drilling, and Middlefield, like dozens of other localities, amended its zoning rules to ban oil and gas drilling within its town limits.
The court said there is nothing even implied in the state’s oil and gas law that suggests localities can’t use zoning procedures to dictate the kinds of land uses permitted within its borders. The court said it could also find no legislative intent by the Assembly and Senate seeking to stop localities from taking the steps Dryden and Middlefield took to ban fracking.
The court said the State Legislature, if it chose to, could tighten the law to ban localities from using zoning laws to halt hydrofracking, but that it has never done so. The court also cautioned that it was taking no stand on the issue of hydraulic fracturing. That is a matter for the executive and legislative branches to decide, the court said.
At the heart of these cases lies the relationship between the state and local governments and their respective exercise of legislative power, the court said.
More than 100 localities across the state – including the City of Buffalo and Erie County – have enacted some sort of bans on fracking.
It’s notable, however, say those favoring gas development, that most of the municipal bans are in areas north of a dividing line where drilling the Marcellus Shale would either be uneconomical or not permitted under existing state environmental laws.
Other governments, nearly all of them in the “sweet spot” for shale development along the state’s southern border, have passed “positive declarations” supporting fracking, the jobs, economic development and prosperity they believe it brings in return.
Brad Gill, executive director of the Hamburg-based Independent Oil and Gas Association of New York, said Monday’s ruling will have a chilling effect on companies that have wanted to frack in a state that, for six years now over two gubernatorial administrations, has had a de facto ban on the drilling process.
Gill said the ruling will hurt not only energy companies, but local landowners who have been hoping to sell or lease drilling rights. He noted there are still many communities that have long had conventional gas and oil drilling and have not enacted bans on fracking.
“It certainly sends a clear message to our member companies who have had holdings in New York State who several years ago decided to leave New York and invest in Pennsylvania and Ohio,” Gill said.
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