The state Appellate Division, Third Department, has ruled that local governments can ban high-volume hydraulic fracturing within their borders.
The appeal by Norse Energy Corporation challenged the town of Dryden, in Tompkins County, which used local zoning laws to ban fracking.
The decision, which was agreed to by all three justices of the court, states, “We find nothing in the language, statutory scheme or legislative history of the (Mining Law) statute indicating an intention to usurp the authority traditionally delegated to municipalities to establish permissible and prohibited uses of land within their jurisdictions. In the absence of a clear expression of legislative intent to preempt local control over land use, we decline to give the statute such a construction.”
Norse Energy Corp., which replaced Anschutz Exploration Corp. as the plaintiff, said the ban violated the state’s ability to regulate the oil and gas industry under the Oil, Gas and Solution Mining Law.
According to a report by the Times Union, attorney Thomas West, who represents Norse in the Dryden appeal said, “We’re obviously disappointed with the decision.”
West told the Associated Press last Thursday that he will ask the state’s top court, the Court of Appeals, for permission to appeal the decision. He said the appellate panel took too narrow a view of the law and relied on previous decisions in cases involving mining sand and gravel rather than drilling for gas and oil.
Katherine Nadeau, the program director for the Water & Natural Resources Program at Environmental Advocates NY, released a statement following the decision saying, “Today’s ruling is a victory for common sense. Municipalities have always had the right to determine where heavy industrial activities are or are not allowed and given its land use, community and environmental impacts fracking is certainly a heavy industry. Congratulations to the towns of Middlefield and Dryden, as well as all of the friends of the court who stood up to those looking to force fracking down New Yorkers’ throats against the wishes of our people and communities.”
The Associated Press reports that the town of Dryden said it was pleased with the ruling.
“The people who live here and know the town best should be the ones deciding how our land is used, not some executive in a corporate office park thousands of miles away,” Dryden Supervisor Mary Ann Sumner said in a statement.
The lawsuit was being watched closely by environmentalists and pro-business groups alike.
“The Business Council’s position is unchanged. We have been a steadfast supporter of shale development. The economic opportunities and potential jobs created by gas development would bring a lasting positive impact to the region and state, and we believe that scientific and technical reviews will prove the vase for moving forward with permits in New York state,” said Heather Briccetti, president and CEO of the Business Council of New York state, INC. “Regardless of the final court outcome on this case, we oppose statutory prohibitions on the state or local level, as contrary to sound economic, energy and environmental policy.”
The town of Middlefield in Otsego County was facing a similar lawsuit by Cooperstown Holstein Corp.