Forum Post: New York Court Affirms Towns’ Powers to Ban Fracking

The Dryden case is merely the latest in a string of similar conflicts arising from Colorado to Pennsylvania that pit local communities against state oil and gas laws.
In a de­ci­sion that could set a na­tional prece­dent for how local gov­ern­ments can reg­u­late gas drilling, a New York state court yes­ter­day ruled for the first time that towns have the right to ban drilling de­spite a state reg­u­la­tion as­sert­ing they can­not. At issue was a zon­ing law in Dry­den, a town­ship ad­ja­cent to Ithaca and the Cor­nell Uni­ver­sity cam­pus, where drilling com­pa­nies have leased some 22,000 acres for drilling. In Au­gust, Dry­den's town board passed a zon­ing law that pro­hibits gas drilling within town lim­its. The next month, Den­ver-based An­schutz Ex­plo­ration Corp. sued the town, say­ing the ban was il­le­gal be­cause state law trumped the mu­nic­i­pal rules.
As An­schutz noted, New York law pro­motes the de­vel­op­ment of oil and gas re­sources in the state. State Supreme Court Jus­tice Phillip Rum­sey ad­dressed this point in his de­ci­sion, writ­ing: "Nowhere in leg­isla­tive his­tory pro­vided to the court is there any sug­ges­tion that the Leg­is­la­ture in­tended — as ar­gued by An­schutz — to en­cour­age the max­i­mum ul­ti­mate re­cov­ery of oil and gas re­gard­less of other con­sid­er­a­tions, or to pre­empt local zon­ing au­thor­ity."
The Dry­den case is merely the lat­est in a string of sim­i­lar con­flicts aris­ing from Col­orado to Penn­syl­va­nia that pit local com­mu­ni­ties against state oil and gas laws. It is com­mon for local gov­ern­ments to zone in­dus­trial or com­mer­cial land, or to in­sti­tute or­di­nances for noise or traf­fic. When it comes to the de­vel­op­ment of nat­ural re­sources like oil and gas, the in­dus­try con­tends that local gov­ern­ment shouldn't make those de­ci­sions.
In New York, the con­tro­versy over state reg­u­la­tion of frack­ing has been brew­ing for years. In 2008, New York ef­fec­tively put drilling on hold while it launched an en­vi­ron­men­tal analy­sis of frack­ing, a process that uses a mix of highly pres­sur­ized water, sand and other chem­i­cals to crack the earth deep un­der­ground. This is the first rul­ing on an in­dus­try ef­fort to use the min­eral ex­trac­tion law to get around local bans.
In ad­di­tion to the en­vi­ron­men­tal and health con­cerns over frack­ing, which we've cov­ered in depth, a fun­da­men­tal issue has been the rights of lo­cal­i­ties against state or fed­eral laws. Ac­cord­ing to Eric Gold­stein, a se­nior at­tor­ney for the Nat­ural Re­sources De­fense Coun­cil in New York, the right of local gov­ern­ments to de­ter­mine their own land use has been guar­an­teed by the Con­sti­tu­tion for over a cen­tury.
"The ar­gu­ment is sim­ple," said Gold­stein. "New York state laws shouldn't over­ride the au­thor­ity of local gov­ern­ments to pro­tect their con­stituents."
In New York, two very sim­i­larly worded laws gov­ern the reg­u­la­tion of min­ing and oil and gas drilling. The oil and gas pro­vi­sion gives the state the power to "reg­u­late the de­vel­op­ment, pro­duc­tion and uti­liza­tion of nat­ural re­sources of oil and gas." The town of Dry­den ar­gued that it was not try­ing to reg­u­late frack­ing but merely try­ing to pro­tect its cit­i­zens and prop­erty. It pointed out that courts have al­lowed towns to ban min­ing, and said Dry­den should be al­lowed to do the same for frack­ing. The jus­tice seemed to agree, con­clud­ing that the state's oil and gas laws don't pro­hibit lo­cal­i­ties from bar­ring drilling.
An­schutz's lawyer, Thomas West, said he was not sure whether the com­pany would ap­peal the de­ci­sion. Even if it does so, said Joseph Heath, an en­vi­ron­men­tal at­tor­ney in New York, Tues­day's win could help set a prece­dent for other com­mu­ni­ties. De­spite the threat of sim­i­lar law­suits from a major cor­po­ra­tion, local frack­ing bans and mora­to­ri­ums have con­tin­ued to grow in the last few years.
"Peo­ple are now con­cen­trat­ing on local gov­ern­ments be­cause that's the best form of pro­tec­tion against frack­ing," said Heath.
Such pro­tec­tion is un­likely to come from the states, as New York's De­part­ment of En­vi­ron­men­tal Con­ser­va­tion has al­ready de­ferred to the courts. When ProP­ub­lica in­ter­viewed the com­mis­sioner last year, he was asked specif­i­cally about the po­ten­tial for con­flict be­tween local mu­nic­i­pal­i­ties and states. He said it was likely "that the courts will need to de­cide these is­sues in a law­suit be­tween the town and the drilling com­pany, not the state." Now, it looks as if at least one court has de­cided.
"[The Dry­den case] is an im­por­tant in­di­ca­tor of how those bat­tles are likely to play out," said the NRDC's Gold­stein, "al­though it's not the final word."
Sunday, February 26, 2012 / PROGRESSIVE JOURNALISM FOR POSITIVE ACTION Lena Groeger ProPublica / News Report