Appeals court says NY towns can ban fracking

Dryden officials pleased, cautious after fracking decision by Andrew Casler, May 2, 2013, pressconnects
“It’s good news — not surprising — but excellent confirmation that we’re on the right track,” Dryden Town Supervisor Mary Ann Sumner said about Thursday’s court ruling. “I’m very proud of the town for being able to take a lead on this issue and say that ‘yes, local government matters. The people supporting the local government matter,’ and it’s nice to have that affirmed by the court,” Sumner said. “It has definitely been worth it.” The lawsuit is considered a landmark. It can decide whether New York municipalities have the right to establish zoning ordinances that ban hydrofracking, a gas extraction method. … Sumner is already looking toward another possible appeal. “If a gas company is willing to step up and appeal this decision, we’ll be happy to continue defending ourselves,” she said. “I don’t think they will win.” The appeals court unanimously upheld the ban, and that means Norse Energy will need permission from the state Court of Appeals to appeal the verdict again. Dryden’s legal fees were approximately $38,000 for the initial lawsuit, according to the town, and the appeals are being handled pro bono by Earthjustice, a nonprofit law organization focused on environmental issues. Tompkins County Legislature Chairwoman Martha Robertson, D-Dryden, said this decision can help other New York towns have confidence in choosing to ban hydrofracking. “Obviously it’s a good day for citizens to have the right to control their own land use… and not have multinational corporations decide how the land will be used,” Robertson said. “This is welcome recognition of the voice of the citizens in the Town of Dryden,” she said, citing a recent town election that was largely decided by candidates’ stance on fracking.

Some members of the anti-fracking group Dryden Resource Awareness Coalition, DRAC, were originally listed as defendants in the court case. The group petitioned for the town to pass their fracking ban. DRAC spokesperson Deborah Cipolla-Dennis, spoke on behalf of the group. “People get very afraid sometimes of these big industries ‘oh, they have lots of lawyers; it’s going to be hard,’ but when you have the law on your side you can win against these companies,” Cipolla-Dennis said. “It is a long process, but we’ve been moving ahead with it and we’re not discouraged. If anything, we’re encouraged by the verdict today, and we’re willing to take this as far as we need to.” [Emphasis added]

Appellate Division says localities can ban fracking by Casey Seiler, May 2, 2013, Capitol Confidential
The state Appellate Division, Third Department, has turned aside an appeal from Norse Energy Corporation, which stepped into the lawsuit abandoned by Anschutz Exploration Corp. that challenged the Town of Dryden’s use of its zoning laws to ban fracking. The plaintiffs argue that the ban violates the state’s supremacy to regulate the oil and gas industry under the Oil, Gas and Solution Mining Law.

The decision, which was agreed to by all three justices who heard the case, states: We find nothing in the language, statutory scheme or legislative history of the (Mining Law) statute indicating an intention to usurp the authority traditionally delegated to municipalities to establish permissible and prohibited uses of land within their jurisdictions. In the absence of a clear expression of legislative intent to preempt local control over land use, we decline to give the statute such a construction. In conclusion, the decision holds “that the OGSML does not preempt, either expressly or impliedly, a municipality’s power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders.”

The same decision earned the rejection of appeals from drilling firms in Cooperstown Holstein Corp. vs. the Town of Middlefield (and as an aside: Have you ever heard a more pastoral-sounding name for an energy company than Cooperstown Holstein? It’s like calling your drilling company “Greengrass Clearwater”). “We’re obviously disappointed with the decision,” said Albany attorney Thomas West, who represented Norse in the Dryden appeal. He noted that since the decision isn’t a reversal of a lower court decision and absent at least two dissenting justices, it’s highly unlikely the Court of Appeals will agree to take the case. Nevertheless, he said the plaintiffs plan to pursue that option. “It’s another nail in the coffin for drilling in New York,” West said, adding that energy companies aren’t going to plunge resources into leases for drilling rights on land that can be swept out from under them by “a 3-2 town board vote.” He criticized the justices’ use of precedent involving sand and gravel mining in reaching a decision applying to natural gas drilling. “We can’t have a state energy policy based on whether a town can zone sand and gravel mining,” West said.

“Towns across the state are banning fracking because their residents do not want to drink poisoned water or breathe toxic air. The real solution to this problem is for the state to ban fracking, but until that happens, local governments have a responsibility to protect their citizens from the oil and gas industry. This decision shows that our democracy in NYS still works and in this David and Goliath battle – we can win,” said Kelly Branigan, a founding member of Middlefield Neighbors and a member of New Yorkers Against Fracking. [Emphasis added]

Appeals court says NY towns can ban fracking by Jon Campbell on May 2, 2013, Politics on the Hudson
A mid-level appeals court on Thursday said local governments in New York can ban hydraulic fracturing and shale-gas drilling within their borders, delivering a major blow to the natural-gas industry and landowners who had sought to have the bans overturned. The state Appellate Division ruled unanimously in favor of the Tompkins County town of Dryden and the Otsego County town of Middlefield, both of which passed zoning laws that prohibit natural-gas drilling. The ruling upheld decisions last year from a lower court.

Proponents of fracking contended New York law prohibits local bans because it defers all regulatory oversight of drilling to the state; Dryden and Middlefield argued the clause in state law doesn’t impede on their ability to use zoning laws as they see fit. Since the appeals court ruled unanimously, Norse Energy and Middlefield farmer Jennifer Huntington—the plaintiffs in the two cases—would have to receive permission from the state Court of Appeals to appeal to the high court. … The decision in the Middlefield case.  The Dryden case can be read here. [Emphasis added]

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