In Blow to Oil Industry, New York's Top Court Upholds Local Fracking Bans

In Blow to Oil Industry, New York's Top Court Upholds Local Fracking Bans
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New York’s highest state court ruled today that local governments have the legal authority to use zoning to bar oil and gas drilling, fracking and other heavy industrial sites within their borders. In a 5-2 decision, affirming the rulings of three lower courts, the justices dismissed challenges to fracking bans created by two towns, Middlefield and Dryden.

The case has been closely watched by the oil and gas industry in the Marcellus region and nationwide. Over 170 towns, villages and cities in New York state have crafted local moratoria or bans on fracking. Dozens more towns are expected to enact moratoria in the wake of this ruling, according to Earthworks, one of the public interest groups whose attorneys worked on the case.

Nationwide, nearly 500 local governments have enacted measures against fracking, according to Food and Water Watch which tracks local control actions, including towns in Texas, West Virginia, Pennsylvania, Colorado and California, each of which have been the focus of recent shale rushes.

The oil and gas industry had argued that allowing local control over fracking risked creating a patchwork of rules in different municipalities. Environmental groups countered that the rights of local communities to control development within their borders trumped those concerns, and that local governments had the clear legal authority to decide how development could proceed.

“On the one hand, you’re saying yes, we should have a comprehensive strategy to deal with such an important issue to our state – energy,” Chief Judge Jonathan Lippman explained when the cases were argued before the court on June 3. “And on the other hand, municipalities believe (they can) determine how they’re going to live. They want some voice in how they live.”

Today, less than a month later, the court’s majority decided in favor of local control. “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,” the New York Court of Appeals wrote in its majority ruling.

The fracking bans represented a “reasonable exercise” of the towns’ zoning authority, the court said in its opinion, written by Judge Victoria Graffeo.  “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,” Judge Graffeo wrote.

The decision drew praise from legal experts.

“Town by town, New Yorkers have taken a stand against fracking. Today’s victory confirms that each of these towns is on firm legal ground,” said Helen Slottje, an Ithaca-based attorney whose legal research inspired New York’s local fracking ban groundswell and who was honored with the 2014 Goldman Environmental Prize. “The anti-fracking measures passed by Dryden, Middlefield and dozens of other New York municipalities are fully enforceable,” said Slottje.

The cases began in September 2011, when the town of Dryden (population 14,500) was sued by Anschutz Exploration Corp, over a ban that precluded drilling on 22,000 acres of land leased by Anschutz. Anschutz abandoned most its leases in the region in September 2012, and Norse Energy, a drilling company based in Norway, bought up some of Anschutz’s acreage and pursued the appeal. Norse filed for bankruptcy in December 2012, but the legal battle continued.

New York has maintained a statewide moratorium on shale gas extraction since 2008.

Several lower court judges previously upheld the use of zoning to ban fracking should that moratorium run out, including an Albany appellate court decision last May. Another ban, covering Avon, New York was also upheld by local courts this April.

Legal battles over local control are underway in several states. A ballot measure in Colorado would shore up legal authority for local bans in that state if approved this November.

The decision represents the latest legal setback for the oil and gas industry. Last week, a Texas judge upheld a $3 million jury verdict for a Texas family whose health was harmed by drilling near their home.

The New York court was clear that it was not making its decision based on the debate over fracking’s health and environmental impacts, saying that state law left those policy decision up to elected officials.

“These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits,” the ruling said.

The state Supreme Court in neighboring Pennsylvania, on the other hand, directly addressed the impacts of fracking in a court ruling issued last December that upheld the right of Pennsylvania towns to control fracking within their borders.

“By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction,” Pennsylvania Supreme Court Chief Justice Ronald Castille wrote in his December 19, 2013 opinion.

Those types of concerns have helped to drive the burgeoning local control movement.

Heavy industry has never been allowed in our small farming town and three years ago, we decided that fracking was no exception,” said Dryden Town Supervisor Mary Ann Sumner. “I hope our victory serves as an inspiration to people in Pennsylvania, Ohio, Texas, Colorado, New Mexico, Florida, North Carolina, California and elsewhere who are also trying to do what’s right for their own communities.”

In Blow to Oil Industry, New York's Top Court Upholds Local Fracking Bans
Sharon Kelly is an attorney and freelance writer based in Philadelphia. She has reported for The New York Times, The Guardian, The Nation, National Wildlife, Earth Island Journal, and a variety of other publications. Prior to beginning freelance writing, she worked as a law clerk for the ACLU of Delaware.

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