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Tuesday, September 27, 2016

by Lena Groeger, ProPublica.

In a decision that could set a national precedent for how local governments can regulate gas drilling, a New York state court yesterday ruled for the first time that towns have the right to ban drilling despite a state regulation asserting they cannot.

At issue was a zoning law in Dryden, a township adjacent to Ithaca and the Cornell University campus, where drilling companies have leased some 22,000 acres for drilling. In August, Dryden’s town board passed a zoning law that prohibits gas drilling within town limits. The next month, Denver-based Anschutz Exploration Corp. sued the town, saying the ban was illegal because state law trumped the municipal rules.

As Anschutz noted, New York law promotes the development of oil and gas resources in the state. State Supreme Court Justice Phillip Rumsey addressed this point in his decision, writing: “Nowhere in legislative history provided to the court is there any suggestion that the Legislature intended 2014 as argued by Anschutz 2014 to encourage the maximum ultimate recovery of oil and gas regardless of other considerations, or to preempt local zoning authority.”

The Dryden case is merely the latest in a string of similar conflicts arising from Colorado to Pennsylvania that pit local communities against state oil and gas laws. It is common for local governments to zone industrial or commercial land, or to institute ordinances for noise or traffic. When it comes to the development of natural resources like oil and gas, the industry contends that local government shouldn’t make those decisions.

In New York, the controversy over state regulation of fracking has been brewing for years. In 2008, New York effectively put drilling on hold while it launched an environmental analysis of fracking, a process that uses a mix of highly pressurized water, sand and other chemicals to crack the earth deep underground. This is the first ruling on an industry effort to use the mineral extraction law to get around local bans.

In addition to the environmental and health concerns over fracking, which we’ve covered in depth, a fundamental issue has been the rights of localities against state or federal laws. According to Eric Goldstein, a senior attorney for the Natural Resources Defense Council in New York, the right of local governments to determine their own land use has been guaranteed by the Constitution for over a century.

“The argument is simple,” said Goldstein. “New York state laws shouldn’t override the authority of local governments to protect their constituents.”

In New York, two very similarly worded laws govern the regulation of mining and oil and gas drilling. The oil and gas provision gives the state the power to “regulate the development, production and utilization of natural resources of oil and gas.” The town of Dryden argued that it was not trying to regulate fracking but merely trying to protect its citizens and property. It pointed out that courts have allowed towns to ban mining, and said Dryden should be allowed to do the same for fracking. The justice seemed to agree, concluding that the state’s oil and gas laws don’t prohibit localities from barring drilling.

Anschutz’s lawyer, Thomas West, said he was not sure whether the company would appeal the decision. Even if it does so, said Joseph Heath, an environmental attorney in New York, Tuesday’s win could help set a precedent for other communities. Despite the threat of similar lawsuits from a major corporation, local fracking bans and moratoriums have continued to grow in the last few years.

“People are now concentrating on local governments because that’s the best form of protection against fracking,” said Heath.

Such protection is unlikely to come from the states, as New York’s Department of Environmental Conservation has already deferred to the courts. When ProPublica interviewed the commissioner last year, we asked him specifically about the potential for conflict between local municipalities and states. He said it was likely “that the courts will need to decide these issues in a lawsuit between the town and the drilling company, not the state.” Now, it looks as if at least one court has decided.

“[The Dryden case] is an important indicator of how those battles are likely to play out,” said the NRDC’s Goldstein, “although it’s not the final word.”

  • 1olderbutwiser1

    be decreed by a judge, rather than the people. The judge was surely during his life, a high-powered successful lawyer. He has probably made millions of dollars for himself, by pushing papers from desk to computer to secretary to desks of clients and judges. He or she may or may not be an elected judge. Although this is in new york, and the land may or not be public property, the owner of the property must abide by the decree of the judge (or judges) as to what may occur in this case of drilling of this land because the interests of others who do not own the land are more important than those who do own the land. If this is public land, the owners get a royalty which goes to themselves (the government)when the well is drilled. If it is land owned by the public, why doesn’t every citizen of that state get a cut, delivered directly to each individual resident, as does alaska? But new york is run by lawyers, so the state law is of course for the government to have their salaries and all, paid first, then the balance can go into the general fund. If their salaries and special consultant fees from other lawyers and “professionals” need to be paid, that is also up there first, to be paid. Who pays all this? The taxpayer who will buy the gas, if it is a successful well. If it is a well that does not produce……those people in the legal business will have all been paid, the taxpayer will still need to pay for any gas he wishes to use, but it will have to come from a well that was drilled before or since……since we are a system of laws and not of men, the laws say that that the legal system is paid first and most surely, even at the risk of needing to sell property of unrelated and uninterested parties elsewhere in the state, since the state must have a balanced budget, and the counties all rely on the state. Now, the people who wished to drill the hole in the ground where the owner is desirous of drilling said hole, must pay their own lawyers to represent them since if even one adjoining owner or one local environmentalist who would in no way be affected by the drilling of this hole, but simply wishes to impress their will on others if even to be only a cog in the wheel, has become “interested” in the case and then mysteriously appears a grasshopper with a few hairs on one wing only, and now the EPA lawyers show up and require more environmental studies which will require more lawyers, consultants, more mail carriers to carry the 200 page “briefs” from one lawyer’s office to the opposing lawyer’s office…..maybe someone in the meantime will invent a product you put into water and when electro-charged, become hydrogen, the dream fuel of the world. But before making it to market, someone gets a lwayer and claims it was their invention, and effectively stops the marketing of that system of energy, so then more lawyers will be needed to challenge that claim.

    If we want to ever balance our budget, we just need a special tax on lawyers, and then we can balance that budget quickly. Pay off the national debt? No problem, tax the lawyers. They are so deeply embedded into our system they have become the principle adversary to successful business and the continuance of any business. Except the illegal drug business, of course. While we have laws against these drugs, we have lawyers who manage to get paid enough to keep dealers on the streets. We the taxpayers pay for the jails people are in, the unionized policemen, the lawyers defending these dealers when being defended from the public defender’s office, and they still walk the streets. It’s time we have a lottery to choose what lawyers will provide free service to people charged with drug violations. If the legal system has proven it cannot stop drugs, time to legalize them all. But then the surplus of lawyers will result in more laws to outlaw more things which will result in the need for more lawyers. The system is broke, we need tort reform, really serious tort reform…..cut this cancer out. Anybody got any laws they wish to create, or repeal?