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June 5, 2014

Top state court hears fracking appeal

 ALBANY — Lawyers on both sides of the high-stakes debate over whether town governments are empowered to zone out gas drilling were barraged with pointed questions from justices of New York’s highest court Tuesday.

The Court of Appeals heard arguments in two cases, Cooperstown Holstein Corp. vs. the town of Middlefield and Mark S. Wallach vs the town of Dryden, that were joined together for a hearing expected to define once and for all if municipal governments are preempted from having any say over the siting of drill pads within their boundaries.

A ruling is expected next month.

Scott Kurkoski, the attorney for Jennifer Huntington of Middlefield, the owner of Cooperstown Holstein Corp., argued the state Oil, Gas and Solution Mining Law makes gas drilling regulation the province of the state Department of Environmental Conservation in order to avoid “not in my backyard” viewpoints from interfering with energy policy.

That remark prompted Chief Judge Jonathan Lippman to comment: “There’s a flip side to that argument, which is, don’t bulldoze over the voice of the people in individual municipalities who want to be heard about how they live their lives,” Lippman said.

Lippman and his colleagues also questioned why the Legislature, if it intended to keep towns out of the mix, did not specifically weave into the statute that towns were preempted from adopting zoning changes that kept out drilling.

Justice Victoria Graffeo said some of the arguments before the Court of Appeals would have the justices “stepping into the void the Legislature hasn’t addressed. Apparently there is an impasse with them trying to pass statewide clarification here as to whether it’s preempted or not preempted. We have to deal with the language of the statute.”

Representing Dryden, attorney Deborah Goldberg of the nonprofit environmental firm Earthjustice, said there is a “huge contrast” between the law being scrutinized and other laws that specifically address the zoning powers of local governmenwt. She said the oil and gas law is “silent” on that question.

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