Asked by Justice Robert Smith how the state could foster a vibrant energy industry if drilling decisions were left to towns, Goldberg said: “Precisely the way Texas does it, and Oklahoma does it, and California does it and Illinois does it, and California does it, where all localities have the right that we’re talking about here, and the industry is thriving. This industry figures out what the lay of the land is, and it manages to accommodate itself.”
Gas industry lawyer Thomas West, representing Wallach, the trustee for bankrupt Norse Energy Corp., told the justices that a ruling upholding the local bans would make energy companies think twice before setting up drilling operations in New York, even if Gov. Andrew Cuomo’s administration authorizes fracking.
“No prudent operator is going to a town even if they allow it if they’re going to be subject to a 3-2 local vote that could change,” West argued before the court. “It would have a very chilling effect because it’s very hard for operators to justify spending the hundreds of millions of dollars to come in and not have regulatory certainty.”
John J. Henry of Albany, representing the town of Middlefield, said a decision upholding the ability of towns to zone out heavy industry would be consistent with the courts’ earlier rulings.
“This court has consistently recognized that zoning is one if not the most fundamental power of a town,” Henry said.
So far, more than 70 New York towns have banned hydrofracking and another 120 have imposed moratoriums, said Helen Slottje, a lawyer who helped a number of towns in Otsego and Schoharie Counties enact gas drilling prohibitions.
Approximately 40 towns, many in the Southern Tier, have enacted resolutions in support of natural gas drilling.
Middlefield Town Supervisor Dave Bliss attended the court arguments, along with Otsego 2000 Director Ellen Pope, Brewery Ommegang communications manager Larry Bennett and Julie Huntsman, an Otsego town councilwoman who is also co-coordinator of Elected Officials to Protect New York.