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Fracking Victory for NY Communities: High Court Upholds Local Bans

Daniel Raichel

Posted June 30, 2014 in Health and the Environment

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Break out the fireworks because it's official.  After several years, a string of victories in the lower courts, and the incredible efforts of countless New Yorkers, the high court of the state, the Court of Appeals, has now made it clear: New York communities have the right to keep industrial fracking off their property, away from their families, and out of their neighborhoods if they so choose.

The court's decision today upholds two local fracking bans passed by the towns of Dryden and Middlefield on the grounds that the state's oil and gas law does not override or "preempt" traditional local power to pass zoning laws regulating the use of land within town borders.

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An argument at the Court of Appeals.  Photo by Tracy Collins

The towns had used these powers to pass bans on fracking several years back, and were later sued by an oil company and a dairy farm claiming that state law did not give them the authority to do so. This interpretation would have left Dryden, Middlefield and towns all across the state helpless to stop fracking activity anywhere within their local borders, even next to a home, hospital, or school playground. 

NRDC was proud to help defend these towns' rights by filing an amicus or "friend of the court" brief in this case, pointing out the absurdity of the challengers' interpretation. As part of our Community Fracking Defense Project, NRDC is fighting to empower communities all across the country to take control of their own fracking fate when their state and/or the federal government has yet to protect them. Indeed, these two New York towns are part of a growing nationwide trend of we're seeing of communities increasingly doing just that-rather than waiting for someone else to act for them.

And, although the decision today is a huge victory for all New York communities and puts to bed any doubts regarding home rule authority to ban fracking, the reasoning of the court is not new.  In finding for the towns, the court largely incorporated the sound reasoning of the lower courts.  And the opinions of those courts, in turn, are grounded in decades-old high court precedent regarding the zoning of solid mineral mining (to see my blogs on these lower court cases click here and here).

As such, there's not much new to add by way of commentary, but here is a quick rundown of the Court's opinion for those interested in the legal nitty gritty:

  • Regulation of Oil and Gas Drilling Is Not Regulation of Land Use - The crux of today's decision is whether local zoning laws affecting fracking activities are overridden by a provision of the state oil and gas law which preempts all local laws  "relating to the regulation of [the] oil, gas . . . industries."  As did all the lower courts, the Court today drew a distinction between the regulation the technical aspects of oil and gas production (typically, the job of the state) and the regulation of local zoning (typically, the job of localities).  In other words, while the state oil and gas law may try to prevent municipalities from becoming environmental regulators, it does not envision that state oil and gas regulators would become your local zoning board.
  • It's Not the Purpose of the Oil and Gas Law to Promote Drilling - The court today also rejected the industry argument that the state oil and gas law intends the state Department of Environmental Conservation (DEC) to promote oil and gas drilling wherever possible.  To the contrary, the Court found that the responsibility of DEC was not promotion of drilling, but regulation only.  Accordingly, there is no conflict with local zoning laws.
  • Fracking Bans Are Fine - And just to clarify, local zoning laws include local zoning bans.  As a last ditch effort, industry argued that even if zoning normally is not preempted by state law, bans would be.  The court, however, easily dismissed this argument, quoting from an earlier opinion in which it stated, "A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole."  Amen.

Today's decision cuts to the heart of American democracy, and just in time to celebrate this Fourth of July.  So this Independence Day, as you raise a glass for freedom from tyranny, don't forget to add a toast for the triumph local democracy. New Yorkers will not be bullied into fracking by powerful oil and gas companies—here's to communities' right to protect themselves!

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Photo by Kurume-Shimin

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Comments

David SteinJul 7 2014 11:02 AM

Dryden is now famous for defeating the natural gas industry AND proudly serving its residents arsenic laden drinking water:

http://ithacajournal.com/article/20140701/NEWS01/306270030/Watchdog-Report-Dryden-residents-drink-tainted-water-while-fix-sought?nclick_check=1

NRDC is clearly more interested in scoring political victories than actually helping communities with their very real water quality problems. Dryden has been non-compliant on Arsenic since 2010 when federal standards were lowered. Arsenic has been reported as a persistent (and naturally occurring) problem in Dryden for decades.

Rather than helping invest in treatment for Dryden's Jay Street well, NRDC sent lawyers.

Ironically, the Ad Valorum tax on a multi-well pad could have probably paid for Dryden's badly needed water treatment system.

Daniel RaichelJul 10 2014 12:54 PM

Hi David,

Thank you for your comment. We weren’t aware of this issue beforehand, and, as I understand it, the Town is taking steps to fix the problem. Arsenic contamination is a very serious matter, and we hope that the Town can address this issue as quickly as possible.

Best,
Dan

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