Fracking Opponents in New York Achieve Landmark Legal Victory

"In a precedent-setting ruling [PDF] that could have wide implications on the future of shale-gas drilling in New York and possibly elsewhere, the state Court of Appeals ruled 5-2 in favor of the towns of Dryden and Middlefield," writes Jon Campbell of USA TODAY on the ruling to allow New York State towns and cities to use their zoning codes to ban fracking.

"We conclude that they may because the supersession clause in the statewide Oil, Gas and Solution Mining Law does not pre-empt the home rule authority vested in municipalities to regulate land use," wrote Associate Judge Victoria Graffeo in the majority opinion.

As noted here in 2012, a state Supreme Court (in New York, the Court of Appeals is the highest, unlike the United States) ruled in favor of Dryden, a town near Cornell University, in allowing the use of its zoning code to ban fracking. We noted in May, 2013 that an Appellate Division court panel unanimously upheld that decision and also a 2011 fracking ban enacted by the Otsego County town of Middlefield.

More than 150 towns and cities in New York have passed a moratorium on fracking over the past six years, and drilling opponents are hopeful Monday's ruling will spur more to act.

High-volume hydrofracking has been on hold in New York since 2008, when then-Gov. David Paterson ordered the Department of Environmental Conservation to complete a lengthy environmental review. That review continues today under Gov. Andrew Cuomo, with no deadline for completion.

Joe Mahoney, staff writer for The (Oneonta) Daily Star in Otsego County captured this quote that referenced the small town charm prevalent throughout villages in upstate New York:

“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,” according to the majority ruling.

Challenging the local fracking bans were Anschutz Exploration Corp., a Colorado-based oil-and-gas company which was subsequently replaced by Norse Energy, and a Middlefield dairy farm, the Cooperstown Holstein Corp., which argued "that New York law gives full power to the state to regulate the industry," writes Campbell.

"New York is the second state in the Northeast, after Pennsylvania, to give municipalities the ability to trump state rules and curtail fracking. Courts in Colorado are examining the same issue," write Joseph De Avila, Mike Vilensky and Russell Gold in The Wall Street Journal. 

"Despite the moratorium, New York has increased its use of natural gas. About 39% of the electricity it generates is from natural gas, up from 20% a decade ago, according to the federal government," notes the Journal, a paradox we noted last year in "New York Has it Both Ways on Natural Gas" which dealt with the conversion of burning dirty heating oil to cleaner natural gas in furnaces in order to reduce soot pollution from New York City's largest source.

Correspondent's note: Full access to Wall Street Journal article should be available for non-subscribers through July 9.