2nd NY court upholds town ban on gas drilling

ALBANY, N.Y. (AP) — While only the state can set rules for oil and gas drilling in New York, local governments have the right to ban the industry from operating within their borders, a state court judge ruled Friday in the second opinion of its kind last week.

The ruling, seen as a victory for local “home rule” and a blow to the industry and gas lease-holding landowners, was handed up by State Supreme Court Judge Donald Cerio in Otsego County. He rejected the claim of a landowner who argued that the rural town of Middlefield’s zoning ordinance enacted last year violated a 1981 state law that trumps local laws when it comes to regulating oil and gas drilling.

On Tuesday, Justice Phillip Rumsey came to the same conclusion in a lawsuit challenging a gas-drilling ban in the Tompkins County town of Dryden. The Middlefield law was challenged by Cooperstown Holstein, which has gas leases on about 380 acres in the town. The Dryden law was challenged by Denver-based Anschutz Exploration Corporation, which has spent more than $5 million leasing and developing 22,000 acres in that town.

Albany attorney Tom West said Friday that one or both decisions by trial-level judges would be appealed to the state Appellate Division and, if necessary, the Court of Appeals. “We still remain confident that appeals courts will rule that localities can’t ban natural gas exploration,” West said.

“We think it’s a great decision,” said Deborah Goldberg, an attorney for Earthjustice who argued in court in defense of the town’s zoning law. “It’s a very thorough analysis of the legislative history and the passage of the supercession clause. The court comes to the conclusion that it is perfectly possible to have the state regulate the method of gas drilling while localities retain the power to regulate land use through zoning and local laws.”

If the decisions stand, it could be a major blow to the shale gas industry in New York. In towns across the southern half of the state, anti-drilling activists for four years have been pitted against industry supporters who say the economically stressed region desperately needs the jobs, taxes, and other financial benefits the industry has brought to Pennsylvania and other states in the Marcellus Shale region.

More than 50 New York communities have enacted gas-drilling bans at the urging of residents who have circulated petitions saying the potential benefits of development aren’t enough to risk polluting water supplies, endangering public health, and transforming a rural landscape into an industrial one.

New York has had a de facto moratorium on shale gas development since it began an environmental review and regulatory process in 2008 to address the impacts of high-volume hydraulic fracturing, or “fracking.” The technology stimulates a well into production by injecting it with millions of gallons of chemically treated water at high pressure to fracture shale and release trapped gas.

“If the local bans are not overturned, very few companies will invest in New York state because their investment is at the mercy of a small town board’s vote,” West said. “Who in their right mind is going to invest millions of dollars without some certainty that they’ll be able to drill?”

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