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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

By Fritz Mayer
June 30, 2014

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.”