Town bans on fracking to NY appeals court

ALBANY, N.Y. (AP) -- Two cases that pit towns against the energy industry and landowners are going to a state appeals court in a case that asks whether the law trumps local authority to control land use through zoning rules when it comes to oil and gas development in New York.

In the past few years, more than 50 New York municipalities have banned gas drilling, and more than 100 have enacted moratoriums on drilling activities. The bans stem from residents' concerns about potential harm to the environment if the state lifts its 5-year-old moratorium on gas drilling that uses high-volume hydraulic fracturing. The practice, known as fracking, frees gas from deep rock deposits by injecting wells with chemical-laced water at high pressure.

Trial-level state Supreme Court judges have upheld bans that were challenged in the rural central New York towns of Dryden and Middlefield. Appeals of those decisions will be argued Thursday in the mid-level Appellate Division. A decision is expected in about six weeks.

Earlier this month, another local Supreme Court judge upheld a challenge to a drilling ban in the Livingston County town of Avon.

The town board in the Tompkins County town of Dryden, 40 miles southwest of Syracuse, voted unanimously in August 2011 to amend the zoning law to ban gas drilling. The action followed months of impassioned public debate initiated by a petition signed by hundreds of residents asking for a ban on fracking.

Six weeks after the ban was enacted, the town was sued by Denver-based Anschutz Exploration, which had gas leases in the town. When the company declined to pursue an appeal of a judge's ruling upholding the ban, another drilling company, Norse Energy, stepped in to appeal.

In the Middlefield case, dairy farmer Jennifer Huntington, owner of Cooperstown Holstein, is appealing the ruling of a state Supreme Court judge in Otsego County upholding the town's drilling ban. Huntington said the ban blocks her from reaping the economic benefits of gas drilling on her farm.

At the heart of the cases is the interpretation of a state law passed in 1981 that says regulation of the oil and gas industry rests solely with the state Department of Environmental Conservation, which "supersedes" local laws and ordinances.

"Our argument is that the towns of Dryden and Middlefield are not trying to regulate the industry; they recognize that regulating the industry is a matter for the state," said Deborah Goldberg, an attorney for the environmental group Earthjustice. "But the town of Dryden is exercising its constitutionally protected local power to regulate land use through zoning."

Goldberg, who is representing Dryden, argues that the state's highest court, the Court of Appeals, ruled in a case known as "Frew Run" that a law regulating the mining industry did not pre-empt local zoning even when that zoning banned the industry from within town borders.

Tom West, who represents Norse in the challenge to Dryden's zoning law, said he'll argue that the Frew Run case, which involved a gravel mine, doesn't apply because the state mining law is fundamentally different from the oil and gas statutes.

The oil and gas law, West said, is intended to ensure extraction of the maximum amount of oil and gas from a large area, protect the mineral rights of multiple landowners, and prevent waste of the resource.

"When a municipality says you can't drill here, you have the ultimate waste of the resource and destruction of the correlative rights of the landowners," West said.

Shaun Goho, an environmental lawyer and instructor at Harvard Law School who is not directly involved in the Dryden and Middlefield cases, said local ordinances related to oil and gas drilling have been common for years in many states, including Texas and Colorado. But local laws are getting a lot of attention around the country now, he said, because drilling is moving into areas that haven't had to deal with it before and many communities are enacting bans that industry is challenging.

In Colorado, an industry group is suing the city of Longmont over a fracking ban approved by the city's voters in November. The city council in Fort Collins recently passed a similar ban. In Pennsylvania, seven municipalities have filed a lawsuit challenging a 2012 state law that takes away their ability to control gas drilling operations through local zoning.

But many town boards in upstate New York have declined resident requests for bans. The majority of bans are outside the counties along the Pennsylvania border where drilling is most likely to be focused in the gas-rich Marcellus Shale if Gov. Andrew Cuomo decides to lift the state moratorium — a decision he has repeatedly postponed.

"This case comes down to this," said Dryden Town Supervisor Mary Ann Sumner. "Who should make the decision affecting the use of our land? The people who live here, who can identify a particular bend in the road or hayfield or sensitive wetland or bog? Do we have that choice or do we leave it to people in corporate offices thousands of miles away who know nothing of our lifestyle?"