The New York Appellate Court has unanimously affirmed Home Rule – a municipality’s ability to apply land use ordinances to oil and gas drilling – in a landmark decision. Bravo to the towns of Middlefield and Dryden and their defense team. The appellate panel of judges ruled unanimously for the Town of Dryden:
Thus, we hold that the OGSML (Oil Gas Solution Mining Law) does not preempt, either expressly or impliedly, a municipality’s power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders.
The panel also agreed with the Town of Middlefield, citing its decision in Dryden :
For the reasons set forth in Matter of Norse Energy Corp. USA v Town of Dryden (supra), we find plaintiff’s claim to be without merit and affirm Supreme Court’s judgment declaring that defendant’s zoning law is valid.
Frankly, to anyone that read the well-reasoned decisions in Dryden or Middlefield or Binghamton or Avon, or that watched the strained histrionics of the plaintiffs’ attorneys at the appeal, this should come as no surprise. Simply put, the state regulates how wells are drilled, the town regulates whether or not shale gas industrialization is an acceptable land use.
If such industrialization is lawfully prohibited by the town’s land use ordinance, then the regulation of how wells are drilled is moot – a town cannot be accused of ‘regulating’ that which does not exist in the town.
The history to date of the Middlefield and Dryden lawsuits has been chronicled in legal journals, such as Charles Gottlieb’s piece, here. And in the findings of the courts themselves, as summarized in the appellate court’s ruling inDryden. The plaintiffs, backed by the gas lobby and acting more as showmen than lawyers, have to go through the motions of filing an appeal to the state’s highest court. So the defense of Home Rule in New York is an on-going exercise. Two groups are in the vanguard:
Team Slottje www.cedclaw.org/donate
Deborah Goldberg of EarthJustice www.earthjustice.org
Now a matter of acting on this epic decision. Because if you think that the fracking collaborators in the DEC are going to protect you or your town, you are mistaken. To all those towns that have not enacted a road use and land use law to address shale gas industrialization, it’s time to get busy. If your town board has not acted, get a new town board. This year.
The first petition to amend the town land use ordinance to specifically ban heavy industry, was the Town of Otsego. Otsego includes most of the Village of Cooperstown, where we summer. I wrote the petition based on a similar petition that Harry Levine had drafted for the Town of Springfield (at the head of Lake Otsego). Local vet Julie Huntsman, a transplanted Southerner, organized the signatories, which specifically included prominent local Republicans. She organized phone banks and they called on virtually everyone in town, by phone, letter or door to door – and got a supermajority of signatures. The Town board subsequently adopted language supplied largely by former Virginia state judge Lang Keith.
Some towns already had prohibitions on industrial uses that would exclude shale gas industrialization – or they are not defined uses in the town. But the first town to actively address the issue was Otsego, ie. Cooperstown, the cradle of Home Rule in New York.
ALBANY — An state appellate court has affirmed the right of local governments to ban the controversial natural gas drilling technique known as hydrofracking.
In a unanimous decision, the Appellate Division, Third Department, turned aside an appeal from Norse Energy Corporation, which had stepped into the plaintiff’s role in a lawsuit initially brought by Anschutz Exploration Corp. against the Town of Dryden’s use of its zoning laws to ban fracking.
When the ban was passed in August 2011, Anschutz had approximately 22,000 acres of land in the Tompkins County community under lease for potential drilling. New York has not yet allowed fracking within its borders despite a regulatory process that has already lasted more than four years.
The plaintiffs argued that the ban violates the state’s supremacy to regulate the oil and gas industry under the Oil, Gas and Solution Mining Law.
The decision rejected that argument, stating, “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.”
In conclusion, the decision holds “that the OGSML does not preempt, either expressly or impliedly, a municipality’s power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders.”
The same decision informed the rejection of appeals from drilling firms in a related case, Cooperstown Holstein Corp. vs. the Town of Middlefield.
“We’re obviously disappointed with the decision,” said Albany attorney Thomas West, who represented Norse in the Dryden appeal. He noted that since the decision isn’t a reversal of a lower court decision and absent at least two dissenting justices, it’s highly unlikely the Court of Appeals (the state’s supreme court) will agree to hear the case.
Meaning, it’s over.
Anti-fracking groups were elated.
“Towns across the state are banning fracking because their residents do not want to drink poisoned water or breathe toxic air,” said Kelly Branigan, a founding member of Middlefield Neighbors and a member of New Yorkers Against Fracking, in a statement. “The real solution to this problem is for the state to ban fracking, but until that happens, local governments have a responsibility to protect their citizens from the oil and gas industry. This decision shows that our democracy in NYS still works and in this David and Goliath battle we can win.”
According to FrackTracker, there are 55 municipal bans against fracking currently in New York state, including the Albany and Guilderland, and 105 moratoriums.