Top New York Court to Decide Whether Towns Can Ban Fracking

August 29, 2013

New York’s highest court agreed to decide whether towns and cities have the power to pass anti-fracking laws.

The Court of Appeals in Albany today said it will hear arguments in lawsuits seeking to block drilling bans passed by the upstate towns of Dryden and Middlefield aimed at stopping the practice of hydraulic fracturing, or fracking, in which millions of gallons of chemically treated water is forced underground to break up rock and free trapped natural gas.

An intermediate-level appellate court in Albany in May affirmed lower-court rulings upholding the bans opposed by some property owners seeking to lease their mineral rights.

“We are hopeful that the Court of Appeals will protect the rights of landowners and allow New York to realize the environmental and economic benefits of natural gas while allowing our nation to maintain its course towards energy independence,” Scott Kurkoski, an attorney for a Middlefield dairy farm owner who sued to block that town’s ban, said in a statement.

Much of central and western New York sit atop the gas-rich Marcellus Shale formation, which holds reserves of more than 141 trillion cubic feet of gas, enough to meet consumption across the entire U.S. for almost six years, according to the U.S. Energy Information Administration. New York officials have sought to balance prospects for the booming economic development seen in Ohio and Pennsylvania against environmentalists’ warnings that fracking may damage water supplies and make farmland unusable.

Town Bans

Fracking already is banned in more than 50 New York towns, while dozens more have moratoriums in place or are considering bans, according to Karen Edelstein, a geographic information- systems consultant in Ithaca.

New York banned fracking in July 2008 so it could draw up new regulations for the drilling process. In February, Governor Andrew Cuomo, a Democrat, abandoned the rule-making process. He said he would make his determination based on the conclusions of state Health Commissioner Nirav Shah, who has been studying fracking’s effect on health. Shah said then he would be done within weeks, though his study has dragged on for months as he’s visited state regulators in Texas, Illinois and California.

The Middlefield dairy farm, which signed two oil and gas leases in 2007 with Elexco Land Services Inc. to explore and develop natural-gas resources under the property, said in a September 2011 lawsuit that Middlefield, a town of about 2,000 people 50 miles (80 kilometers) west of Albany, had no authority to enact a ban because the activity is governed by state law.

Anschutz Lawsuit

Anschutz Exploration Corp., a Denver-based affiliate of billionaire Philip Anschutz’s closely held company, sued Dryden, a town of 14,000 people about 75 miles west of Middlefield, the same month.

A judge in Cortland upheld Dryden’s ban in February 2012. A judge in Wampsville ruled the same month that Middlefield’s was also legal. The cases were consolidated for appeal. Norse Energy, a Lysaker, Norway-based explorer whose U.S. unit filed for bankruptcy protection in December, replaced Anschutz Exploration in the Dryden appeal.

“We are confident that the Court of Appeals will affirm, as two other courts have before it, that our town has the right, enshrined in our state constitution and upheld by the courts, to decide how land is used within our town borders,” Dryden Town Supervisor Mary Ann Sumner said in a statement. “Still, the oil and gas industry is dissatisfied and stubbornly insists on dragging out this court case. Clearly, they’re not used to not getting their way.”

Just a week before the appeals court in Albany heard the arguments, Justice Robert B. Wiggins in Livingston County upheld a ban in Avon, a town and village of about 11,000 people 19 miles southwest of Rochester.

Full Review

A federal judge in Brooklyn in September threw out a lawsuit by New York Attorney General Eric Schneiderman seeking a full environmental review of hydraulic fracturing. The judge granted a motion by the U.S. Environmental Protection Agency to dismiss the case, finding that the development plans are in the early stages and the threat of harm is speculative.

Schneiderman sued the Delaware River Basin Commission, the EPA and other federal agencies in May 2011 to force a fuller assessment of the environmental effects of gas development on the state’s water supply.

The commission was created in 1961 by a pact among New York, Delaware, New Jersey, Pennsylvania and the federal government. It is responsible for water quality in the Delaware River Basin, which supplies drinking water to the four states.

18,000 Wells

Schneiderman said in the lawsuit that the commission’s proposed regulations would allow fracking at 15,000 to 18,000 gas wells without a full environmental review. If the regulations are issued, New York’s moratorium will be lifted.

Kurkoski said he expects a decision from the Court of Appeals within six months. His client, dairy farm owner Jennifer Huntington, said in a statement that she hopes that the court will reverse the earlier rulings.

“This case has been about protecting property rights from unreasonable interference at the municipal level,” Huntington said.

The cases are Anschutz Exploration Corp. v. Dryden, 902/2011, New York Civil Supreme Court, Tompkins County (Ithaca); and Cooperstown Holstein Corp. v. Town of Middlefield, 1700930/2011, New York Civil Supreme Court, Otsego County (Cooperstown).

With assistance from Christie Smythe in Brooklyn, Freeman Klopott in Albany and Bradley Olson in Houston.

Editors: Mary Romano, Charles Carter

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