By Joe Mahoney The Daily Star
---- — The Otsego County town of Middlefield and the Tompkins County town of Dryden — along with the principle of home rule — scored major victories, with the state Appellate Division issuing twin rulings that uphold the trail-blazing bans on natural gas drilling.
The towns had also prevailed in the first round of the case, with state Supreme Court judges backing their right to enact home-rule legislation against drilling.
The cases could end up before New York’s highest court, the Court of Appeals.
On the losing side of the mid-level appeals court decisions are the natural gas industry and Jennifer Huntington, operator of Cooperstown Holstein Corp., who said the town of Middlefield’s zoning change in June 2011 put a stop to her plans to have a conventional gas well at her property.
In the Dryden decision, which was cited in the Middlefield case, the court wrote: “We hold that (current law) 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.”
Huntington said she decided to file the lawsuit against Middlefield in order to get legal clarity over whether the town had the right to prevent local landowners from allowing gas wells to be put into operation on their parcels.
“This is how the democratic process works in the United States,” she said. “If you have a question or a concern with a rule or law, this is how you go about it. There were regulations already on the books. There was a disagreement in the interpretation of them. It was a difference of opinion.”
Huntington’s lawyer, Scott Kurkoski said he took issue with the decision. “The Appellate Division interpreted the oil and gas law by relying on a mining case decided by the Court of Appeals. The laws and the policy behind each law are vastly different,” he said. “The mining laws specifically allow zoning but the oil and gas law does not. Most importantly, New York will never have an effective energy policy if our courts equate the state’s interests in promoting the production of sand and gravel with the production of energy.”
Middlefield Town Supervisor Dave Bliss said: “We’re pleased that the court has agreed with our position that a ban is not a regulation, and we had the authority to do what we did.”
Nicole Dillingham, president of the environmental group Otsego 2000, and a supporter of home rule laws against drilling, said Bliss and all the Middlefield town board members were courageous to defend the town from drilling even as the town was being threatened with potentially costly legal action.
She said she hopes the rulings will prompt other towns that have not already banned fracking to follow the path chartered by Middlefield and Dryden.
“There is no excuse now for towns not to take steps to protect their citizens,” said Dillingham. “People threw grilled cheese fundraisers and gave their birthday money for the defense of Middlefield. This is a David and Goliath story, with people from these communities standing up and saying, ‘No, we’re not going to do it this way.’”
Bliss said the defense of Middlefield’s law has cost about $100,000 so far, but the legal fees have been covered by donations that have poured in from supporters of home rule. So far, he said, money from taxpayers has not had to be used for the legal defense. The fundraising effort was initiated by a grassroots citizens group called Middlefield Neighbors.
Since Middlefield and Dryden enacted their drilling bans in 2011, about 150 towns and villages have passed either bans or enacted moratoriums preventing drilling for gas trapped under shale formations.
The gas industry and Huntington contended that Middlefield exceeded its authority and that only the state Department of Conservation was empowered by the state Oil, Gas and Solution Mining Law to regulate drilling.
The towns responded that they were not regulating drilling but instead were banning it.
The Joint Landowners Coalition of New York, an advocate for allowing hydrofracking in gas-rich regions of New York, said it was disappointed by the ruling.
“These decisions continue to wreak havoc in our towns, displacing most town business with issues that should be decided at the state level,” the coalition said in a statement. “Local municipalities are simply not equipped to decide issues affecting our state and national interests in producing clean domestic energy. New York cannot have a ‘not in my backyard approach’ to energy development.”
Anti-drilling activists in the town of Oxford seized on the rulings within hours after they were issued. Richard Lacey of the group Oxford Visionaries said his group will press the Oxford town board to join the Village of Oxford in creating a joint comprehensive plan and “dump the pro-gas law” enacted in 2007.
Oxford and several other towns in Chenango County, has been eyed by the gas industry for potential gas wells.
The state has placed a moratorium on horizontal high-volume hydraulic fracturing for shale gas. The Cuomo administration has prepared draft rules to govern fracking. But before deciding whether it will allow fracking, it has said it will await a health study being overseen by Dr. Nirav Shah, who was installed as state health commissioner by Gov. Andrew Cuomo.
Shah has told reporters there is “no timetable” for the decision.