THE TOWNS OF MIDDLEFIELD AND DRYDEN WIN – FRACK BANS ARE SUSTAINED
New York State’s highest court, the Court of Appeals, has upheld the right of municipalities to apply their zoning ordinances to prohibt shale gas industrialization. After reviewing the Town of Dryden and Town of Middlefield trial court rulings, the Appellate Court’s unanimous affirmation of those decisions, and listening to the oral arguments, the Court of Appeals ruled 5 to 2 in favor of the towns, affirming that oil and gas industrialization is not exempt from land use ordinances.
Which is now racing around the world . . .
Associate Judge Victoria Graffeo wrote the majority opinion: state oil and gas law does not specifically pre-empt zoning ordinances:
“There is no dispute that the State Legislature has this right if it chooses to exercise it. But in light of ECL 23-0303 (2)’s plain language, its place within the OGSML’s framework and the legislative background, we cannot say that the supersession clause — added long before the current debate over high-volume hydrofracking and horizontal drilling ignited — evinces a clear expression of preemptive intent. The zoning laws of Dryden and Middlefield are therefore valid.”
That is in fact how land use law works in all other states, the only exceptions being where ALEC laws have been passed to gut local zoning rights in favor of “frack anywhere.” The fact that the prohibition applies to all zoning districts, not just residential areas, does not invalidate it, as the court found, since both towns prohibit all heavy industrial uses, not just shale gas industrialization.
Of the seven justices, there were two dissenting opinions – Judge Piggott wrote that the towns’ ordinances “regulated oil and gas drilling under the pretext of zoning.” Since zoning only addresses authorized land uses, this is little different than saying a town ordinance prohibiting tanneries in residential neighborhoods regulates tanneries. Since both Middlefield and Dryden prohibited shale gas industrialization as a land use in the entire town, this is like saying that the towns were regulating non-existent oil wells. What Judge Pigott does not know about land use law is a lot.
With the 5 supremes, the total of New York justices that have held in favor of Home Rule now stands at 13 vs 2 dissents. And 13 to 2 is considered a rout in Cooperstown.
This ruling keeps New York squarely in the main-stream of state land use law. The only states that have completely disarmed municipal zoning ordinances are Colorado and Ohio – both at the behest of the fracketeers. Those states are the exceptions that prove the rule. Home Rule is the law in all other oil and gas states, including Pennsylvania, Oklahoma, California, New Mexico and Texas.
This ruling is a vindication for a lot of smart, hard working people, starting with Team Slottje who got the ball rolling and kept it rolling, Michelle Kennedy, who promoted Home Rule, Julie Huntsman who got the first town ban done in Otsego, Judge Lang Keith, who wrote the Otsego ordinance, Kelly Branigan, Peg Leon, Kim Jastremski who got the 2nd ordinance done in Middlefield, Marie McCrae and Hillary Lambert in Dryden, Harry Levine in Springfield. Ellen Pope and Nicole Dillingham who supported home rule initiatives and the town’s defense in court. Deborah Goldberg, John Henry arguing in front of the Supremes, and all the individuals who got bans passed in their towns, then went on to pass bans against frack waste. Congratulations. You earned and deserve this victory.
Kelly Branigan and Kim Jastremski, founders of Middlefield Neighbors, speaking on behalf of members of Middlefield Neighbors, stated “We are deeply grateful to our Town Board, headed by David Bliss, which showed courage and perseverance in responding to their citizens’ concerns. We are parents, grandparents, farmers, doctors, and small business owners fighting to protect our rural community and our children’s future, and are relieved to have the Court affirm our right to Home Rule.” They added, “We thank all the attorneys who provided counsel, from Michelle Kennedy, Esq. of Cooperstown to John J. Henry, Esq. of Whiteman, Osterman & Hanna and Deborah Goldberg, Esq. of Earthjustice, who represented the towns of Middlefield and Dryden, respectively, and who did so with integrity and skill.”
Under the theory advanced by the fracking proponents, Environmental Conservation Law 23-0303, enacted in 1981, pre-empted all local government rights to adopt zoning which interfered with drilling interests. They asserted that local governments had no power to zone-out drilling anywhere it might be permitted by the DEC and that well pads could be installed adjacent to schools, churches, hospitals, homes, in agricultural districts, in pristine forests and near surface and ground water sources that served thousands, without compliance with local zoning.
Relying on the traditional Home Rule power to enact zoning to protect community character, an existing economic base, and the health and safety of residents, more than 180 communities across New York refused to be intimidated and enacted local bans and moratoria prohibiting fracking. Another 80 are working toward bans or moratoria. Their courage and that of the people who made the phone calls, wrote the letters, attended town meetings and vowed to fight is being celebrated today. This is a great day for local government and should serve as a reminder that the people of New York expect their local and State leaders to protect their rights to local control over the character of their communities and the safety of their residents.
So what happens now ? Any town that has held off banning fracking for fear of getting sued by the frackers just got a neon green light to proceed with a ban. If the town’s elected officials do not take steps to protect the town, they should be replaced at the next available opportunity.
The frack lobbyists will try to introduce an ALEC “Frack Anywhere” bill in legislature, gutting Home Rule. Given the political dynamics, that will die in committee.
The Governor, if he harbors delusions of higher office, will permit fracking after his re-election, with some Potemkin show wells at the Pennsylvania border. Before that happens, the state will need to get its ordinances into the 21st century – starting with a severance tax, the prohibition of frack waste dumping, an amendment to the Compulsory Integration law, and the separation of the Division of Mineral Resources from the DEC.
If the Governor does not harbor delusions of higher office, he will ban fracking in New York state.