The courts are expected to take less time to determine if towns have the legal right to keep out hydraulic fracturing for shale gas than state officials are taking to determine if the controversial form of drilling should be allowed in New York.
The state’s highest court, the Court of Appeals, is expected to decide this summer whether it will take up the cases involving the authority of the towns of Middlefield in Otsego County and Dryden in Tompkins County to ban gas drilling from within their respective borders.
Lawyers for Jennifer Huntington, the owner of Cooperstown Holstein Corp., and Norse Energy have decided to challenge a unanimous ruling by a mid-level appeals court last month that held New York towns to have the home rule authority to zone out fracking.
The appellate court said a ban on fracking did not amount to regulating the activity. Huntington initiated her case against the town of Middlefield, and Norse took over as the plaintiff against Dryden after Anschutz Exploration Corp. opted not to pursue the appeal.
The Court of Appeals must first decide whether to grant leave to appeal. The motion filed by lawyers for Huntington and Norse will appear before the top court June 17, said David Clinton, the town attorney for Middlefield.
The Court of Appeals is expected to take up to a few weeks to decide whether it will hear the case, Clinton said. If it does, the matter will most likely be argued before the court in late fall, he added.
The Middlefield and Dryden bans were enacted in 2011. Since then, more than 150 towns and villages have adopted similar bans or moratoriums.
State officials have spent the last four years coming up with draft regulations to govern horizontal hydrofracking but have not yet decided whether to permit it. The delay has continued while the Cuomo administration awaits a study on the possible public health implications from Dr. Nirav Shah, New York’s health commissioner.
Clinton said that even though the appellate court’s ruling in favor of home rule was unanimous, he believes the Court of Appeals will end up deciding to hear the case since it involves a matter of important state policy.
“It only takes two of the seven justices to grant the leave,” he said. “I think the court will hear it.
The legal expenses for Middlefield have been significant, but have been defrayed by donations to the town generated by a fundraising campaigned coordinated by the pro-home rule group Middlefield Neighbors.
Middlefield Town Supervisor Dave Bliss estimated that Middlefield Neighbors have raised $100,000 so far to implement and defend the frack ban.