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July 3, 2014

NY's top court allows fracking bans

Local governments in New York have the authority to zone out gas drilling, the state’s highest court decided Monday in a 5-2 ruling that grew out of challenges brought against fracking bans enacted by the towns of Middlefield and Dryden.

The Court of Appeals signaled in the majority decision that it was not focused on the merits of the bans but on the legal authority of the towns to keep out drilling, a move the industry claimed exceeded their authority.

“The towns both studied the issue and acted within their home rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately-cultivated, small-town character of their communities,” according to the majority ruling.

The ruling erects a major barrier to the drilling industry in New York, even if Gov. Andrew Cuomo gives the green light for shale gas permits to be issued by the state Department of Environmental Conservation, as companies could not set up operations in the growing number of communities that have banned gas production.

“The decision is a significant victory for municipal home rule rights to ensure local residents have a say in what happens in their community,” Middlefield Town Supervisor Dave Bliss said. “This decision goes a long way to ensure the town of Middlefield will continue to be known for its clean air, clean water, farms, forests, hills, trout streams, scenic viewsheds and rural lifestyle.”

The majority decision was written by Associate Judge Victoria Graffeo, a Republican who was appointed to the top court by former Gov. George Pataki, also a Republican. It cited the fact that the state law governing drilling was silent on whether towns have the authority to enact zoning rules that could impact oil and gas exploration.

“We conclude that they may because the supersession clause in the statewide Oil, Gas and Solution Mining Law does not pre-empt the home rule authority vested in municipalities to regulate land use,” Graffeo wrote.

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