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December 03, 2016
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High court upholds fracking bans; zoning important function of local government

Deborah Goldberg, an attorney with the environmental advocacy group Earthjustice, argues before the Court of Appeals on June 3

The 14 municipalities in the counties of Sullivan, Ulster and Delaware that have passed zoning that bans hydraulic fracturing and other industrial uses can now rest assured that the bans are legal.

The New York State Court of Appeals, the state’s highest court, followed the lead of the lower courts and ruled in favor of the towns of Dryden and Middlefield that the fracking bans fall within the power of local officials.

In a five to two decision the court wrote, “the supersession clause in the statewide Oil, Gas and Solution Mining Law (OGSML) does not preempt the home rule authority vested in municipalities to regulate land use.”

Speaking specifically of the state’s right to overrule local laws, the court wrote, “There is no dispute that the state legislature has this right if it chooses to exercise it,” but in this case, “we cannot say that the supersession clause – added long before the current debate over high-volume hydrofracking and horizontal drilling ignited – evinces a clear expression of preemptive intent.”

The court also cited a previous decision in another case which said “the legislature has recognized that the local regulation of land use is ‘among the most significant powers and duties granted . . . to a town government.’”

Helen Slottje, an attorney who advised several towns in Sullivan County about adopting fracking bans, said, “The oil and gas industry tried to take away a fundamental right that pre-dates even the Declaration of Independence: the right of municipalities to regulate local land use. But they failed.”

“Heavy industry has never been allowed in our small farming town and three years ago, we decided that fracking was no exception. The oil and gas industry tried to bully us into backing down, but we took our fight all the way to New York’s highest court. And today we won,” said Dryden Town Supervisor Mary Ann Sumner.

Not everyone was pleased. “The Joint Landowners Coalition of New York (JLCNY) is disappointed with the New York State Court of Appeals’ ruling in Middlefield and Dryden,” said Dan Fitzsimmons, president of the organization. “The rights of the state and its experts at the NY Department of Environmental Conservation to make decisions concerning the production of New York’s domestic resources has been obliterated by the court in favor of a not in my back yard mentality.”

Scott Kurkoski, who represents dairy farmer Jennifer Huntington who signed a gas lease, attacked Governor Andrew Cuomo for not yet determining if fracking will be allowed in the state after seven years of considering the matter. He said, “New York squanders the best opportunity for energy independence we have seen in our lifetimes.”

But for the 77 municipalities that have passed fracking bans in the state, and the many more that are considering bans, the ruling brings an end to uncertainty.

“This decision by the Court of Appeals has settled the matter once and for all across New York State and has sent a firm message to the oil and gas industry,” said Earthjustice managing attorney Deborah Goldberg. “For too long the oil and gas industry has intimidated and abused people, expecting to get away with it. That behavior is finally coming back to haunt them, as communities across the country stand up and say ‘no more.’ Earthjustice is proud to have stood with, and fought on behalf of, one such community.”