$50 million lawsuit pitting gas company Lenape Resources against the Town of Avon enters court today, Can Towns Ban Fracking? This One Case Could Decide Them All

$50 million lawsuit pitting gas company, Town of Avon enters court today by Ben Beagle, February 4, 2013, Livingston County News
The lawsuit pitting a natural gas drilling company against the Town of Avon and state Department of Environmental Conservation arrives today in Livingston County Court. Lenape Resources, which is based in Alexander, Genesee County, is seeking at least $50 million in damages from the town, claiming a local moratorium on gas drilling and storage has cost Lenape millions of dollars in lost business and unused mineral rights. Lenape President John Holko has also claimed that the authority to regulate the gas industry resides with the state Department of Environmental Conservation and not local governments. The company is suing DEC, saying the agency is required to take action against local bans. … Drillers and DEC counter that state regulations and industry safeguards will protect against contamination from drilling and fracking. Lenape’s wells reportedly aren’t subject to the state’s moratorium because they’re vertically drilled and use low-volume fracking rather than the newer technologies necessary for shale gas development. Lenape, the principal producer of natural gas in Livingston County, has been operating gas wells in Avon since 1991. In 2012, the majority of Livingston County towns adopted one-year moratoriums banning vertical hydraulic fracking. Avon adopted its moratorium on June 28, 2012, in a split 3-to-2 vote. The moratorium exempted existing gas well operations but Holko ordered Lenape’s Avon wells – there were 19 operating — shut down in July. On Nov. 13, 2012, Lenape filed its lawsuit against the Town of Avon and DEC, disputing the legality of Avon’s moratorium. Michael Joy, an attorney representing Lenape, said that Avon was selected as the subject for this widely-watched legal action because Lenape was operating wells in Avon and because Avon received vigorous input from Lenape during the decision-making process. … DEC has had a moratorium on gas wells using horizontal drilling and high-volume hydraulic fracking since 2008, when the agency began an environmental impact review. [Emphasis added]

Can Towns Ban Fracking? This One Case Could Decide Them All by Evan Dawson, February 4, 2013, 13WHAM
A very important question is at the center of a court case that commenced this morning in Livingston County Court: Do individual towns have the right to ban natural gas fracking? An energy company is suing the town of Avon, hoping to set a precedent that would block towns from making their own decisions on fracking. Dozens of towns are considering or have already enacted bans — more than half the towns in Livingston County passed one-year moratoriums on fracking, for example — and this is the one case that could decide them all. We asked Michael Joy, attorney for Lenape Resources, why towns should’t have the right to ban fracking in the same way that towns can vote to ban, say, alcohol. Joy said it wasn’t a fair analogy. … Joy argued that an alcohol ban wouldn’t destroy the alcohol industry, but fracking bans could destroy the energy industry in New York State. “There is absolutely the potential to see the death of — these kinds of actions could drastically impact the industry, and local employment,” Joy said. The attorney for the town of Avon, who declined an interview after the hearing, disagreed with Lenape’s position. In court, Avon’s attorney argued that the State Court of Appeals has repeatedly moved to protect the rights of towns to set their own standards for what is an appropriate use of the land within its borders. The attorney stressed, “This case is not about fracking. It’s about town rights. Lenape is asking the court to eliminate the rights of towns to decide what use of land is appropriate.” The attorney continued the point by saying that individual towns have to decide whether tourism and recreational activities can co-exist with natural gas extraction. He told the judge that Lenape’s position would take away the town’s ability to protect its resources.

Joy responded by telling the judge that much of the debate is being driven by “fear-mongering” and said, “Local municipalities should not be regulating the natural gas industry because they clearly do not understand what goes into the operation of it.” Regarding the potential for bans to hurt the energy industry, Avon’s attorney scoffed: “This is not a referendum on whether the natural gas industry is going to survive in this state.” Lenape Resources is located in Alexander, NY, just south of Batavia. The company has operated in Avon for several decades, but is awaiting a state ruling on fracking. The lawsuit seeks $50 million in damages, claiming the recent ban has injured the company.

Outside the courthouse, activists rallied to Avon’s side and said there were other rallies in Albany and elsewhere focused on the same subject: home rule. “We’re basically coming out to support Avon and support the right of home rule, of local towns to set bans and moratoriums if that’s what the folks decide,” said Zora Gussow while she waved handmade signs. This case is likely to become a model for other towns, and Lenape chose Avon for that very reason. “The fact that there are more than a hundred towns dealing with this issue across New York State makes this case that much more important,” Joy explained. … Judge Robert Wiggins did not set a timetable for moving forward, but attorneys on both sides hope to hear from the judge before the end of next week. [Emphasis added]

Will fracking soon be allowed in the Town of Avon? by WHEC.com, February 4, 2013
A lawsuit between a gas drilling company and a Livingston County town will head to court on Monday. Lenape Resources filed the $50 million lawsuit against the Town of Avon in November. The lawsuit is challenging the one year moratorium on hydrofracking, saying the town has illegally shut down present and future gas production. Regional activists and community leaders are expected to rally at the Livingston County Courthouse at 9:30 Monday morning. Activists say they will continue to rally against fracking and defend its moratorium in court. … So far, only Avon has been targeted in a lawsuit from Lenape Resources.

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