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State's highest court upholds towns' hydrofracking bans (Updated)

By Tom Precious

ALBANY -- In a case closely watched by localities along with environmental and energy interests, the state’s highest court this morning affirmed the rights of two towns to use local zoning ordinances to ban fracking for natural gas.

The 5-2 decision could have widespread implications for the future of the controversial hydrofracking process that is, by edict of the Cuomo administration, on hold at present across New York.

The Court of Appeals said there is nothing in the state’s oil and gas statute that preempts a locality’s right, through zoning provisions, to ban certain kinds of land uses, such as the controversial fracking process.

The case had been 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 the town’s ban saying it exceeded its legal authority. The company has since gone bankrupt, but the case was also merged with one brought by Cooperstown Holstein, a dairy farm in Middlefield in Otsego County that had signed a deal with a private company for gas drilling on its land.

Lower courts had 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 hodge-podge system of fracking bans by having a single state law set out the terms for gas drilling in New York. The law has its roots going back to 1935.

Today’s court decision by the Court of Appeals upholds those lower court rulings. Dryden in 2011 banned any activities related to natural gas exploration or drilling, and Middlefield, like dozens of other localities around New York, amended its zoning rules to ban oil and gas drilling within its town limits.

More than 100 localities across the state have enacted some sort of bans on fracking, and local officials and environmentalists will cheer the court's decision. But for the natural gas industry, and 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 Cuomo, now nearly four years in office, has still not decided whether to life a state moratorium on new fracking operations, a move critics say is costing the state thousands of jobs. Environmentalists, meanwhile, have been protesting Cuomo over the issue at every opportunity, including a deep-pocket fundraiser he has scheduled for tonight in Manhattan. Zephyr Teachout, the Fordham law professor who is trying to challenge Cuomo in a Democratic Party primary, is among those expected at the protest outside Cuomo's fundraiser.

The court today 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 in 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 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 hydrofracking; that, the court said, is a matter for the executive and legislative branches to decide.

“At the heart of these cases lies the relationship between the state and its local government subdivisions and their respective exercise of legislative power,’’ the court said.

Brad Gill, executive director of the Hamburg-based Independent Oil and Gas Association of New York, said the court’s ruling will have a “chilling effect’’ on companies that have been eyeing fracking in a state that, for six years now over two gubernatorial administrations, has had a de facto ban on the drilling process.

Gill estimated that there are nearly 200 localities in the state with some sort of ban on fracking; he was not immediately sure how many of those are resolutions by local legislative bodies, which are not covered by today’s decision, versus zoning ordinance bans on fracking that the court’s ruling affects.

Gill said the ruling will hurt not only individual 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, adding that the ruling will create a “patch-work’’ of rules that will vary by locality if New York state ever does lift the ban on fracking.

“You’ve got to make business decisions based on certainty. We don’t have that in New York,’’ he said.

But New Yorkers Against Fracking, an environmental group, hailed the decision
for affirming the right of New Yorkers to ban fracking and its toxic effects from their communities.''

The group called on Cuomo to enact a statewide ban on fracking.

"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.

"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. Cities, towns and villages have long retained the right to protect against industries they believe can cause harm, and this was nothing more than a brazen attempt by frackers to exploit the judicial system for their own financial gain,'' she said in a statement this afternoon.


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