February 28, 2012 —
NEW YORK STATE — With two Supreme Court judges ruling last week that municipalities have the right to ban gas drilling and fracking through zoning codes, activists who oppose drilling say now more towns and other municipalities will be emboldened to adopt similar bans.
Ramsay Adams, executive director of Catskill Mountainkeeper, said, “This will absolutely embolden towns to move in that direction. One of the scare tactics the gas industry has been using is to say ‘You’re opening up your town to the might and brute force of the industries’ lawyers.’ And the reality is it’s perfectly legal” to zone out drilling.
The first case ruled on last week concerned the Town of Dryden, which was sued by Colorado-based Anschutz Exploration Corporation, which had acquired gas leases in the town. Justice Philip Rumsey ruled that the state’s Environmental Conservation Law does not pre-empt a municipality’s right to zone out drilling.
Bruce Ferguson of Catskill Citizens for Safe Energy agreed with Adams’ assessment that the decision would influence the actions of other towns. He said, “The Town of Dryden had a flat-out prohibition specifically against fracking, and every phase of fracking, from storage of materials to be used in fracking to disposal of waste, and the judge upheld all of those prohibitions.”
The second decision concerned the Town of Middlefield, in which a landowner who had signed a lease sued the town after it adopted zoning that banned drilling. In that case, too, Judge Donald Cerio ruled that the town had the right to do so.
Thomas West, one of the lawyers who represented the plaintiffs in both cases, is widely quoted as saying that one or both cases will be appealed to the Appellate Court and to the Court of Appeals, if necessary, after that. West said that if the two rulings stand, it would have the likely effect of leading to very little drilling in the Marcellus Shale in New York, because drilling companies will be reluctant to invest huge sums of money without some guarantee that drilling will be allowed to move forward.
Tom Shepstone, a planning consultant and a spokesman for the pro-drilling organization Energy in Depth, expressed confidence regarding the Dryden decision that it would be overturned on appeal. In an article titled “Will the Dryden Turkey Fly?,” he responded to a message sent by an individual who was gloating over the Dryden decision handed down by Judge Rumsey.
Shepstone wrote, “He’s just plain wrong in my judgment and I fully expect his judgment will be overturned in the appeals process. Who knows, natural gas supporters may even prevail in Middlefield, but it won’t matter. Either way, this case is headed to appeal. That much has been known for a long time.”
In a later email, Shepstone wrote, “The key point is that
every ban or moratorium enacted to date has been in communities outside or on the fringe of the economically viable portions of the Marcellus Shale region. There are none in communities where Marcellus Shale development is sure to take place. The Community Environmental Defense Council (an organization that has been active in shaping anti-drilling zoning regulations for municipalities) has been precisely targeting those communities for political reasons.”