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Victory in Dryden Is Big Win for the Rights of All New York Municipalities

Daniel Raichel

Posted February 22, 2012

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Yesterday, a Tompkins County Judge delivered a decisive victory for the town of Dryden and municipalities statewide by upholding the town’s recently passed zoning ordinance banning fracking anywhere within its borders against a challenge by a Colorado drilling company (see opinion here.

As NRDC has blogged before, the case turned on whether New York municipalities may use traditional zoning authority to limit or exclude oil and gas activities within their borders, including drilling using the industrial and accident-prone technique known as fracking. Dryden, understandably, argued that it had this power; Anschutz, the gas company, argued that Dryden, like all municipalities, had zero authority to say where oil and gas activities – such as well pads, condensate tanks, compressor stations, pipelines, chemical storage, toxic impoundment ponds, and temporary worker facilities – may be placed.

The precise legal question at issue was whether language in the state law that governs gas drilling (the OGSML) barring municipalities from passing laws “relating to the regulation of oil, gas, and solution mining industries” completely prevented or “preempted” traditional local zoning authority.  Although few New York courts have interpreted this provision, the state’s highest court (the Court of Appeals) has interpreted a nearly identical preemption provision of the state mining law on three separate occasions – upholding local zoning authority every time. (See Frew Run, Hunt Bros., and Gernatt Asphalt).

The decision of the court yesterday, then, can be seen as kind of a “no brainer.”  Not only is it consistent with high court decisions in New York, as well as those of other states (namely Pennsylvania and Colorado), it also just makes sense.  When the state legislature decided that municipalities weren’t the best folks to regulate the oil and gas industry (e.g., to determine how wells should be drilled or the technical details of waste disposal), they likely didn’t mean to render towns powerless to stop a frack well from being drilled next door to a hospital or in the middle of a suburban neighborhood.

Yesterday’s decision simply allows Dryden to continue to do what all New York municipalities have been able to by law for over a hundred years: use zoning to protect the health of their residents and the character of their neighborhoods from unwanted and incompatible industrial activity. 

While the decision is certainly grounds for celebration, don’t break out the champagne just yet.  A similar zoning challenge in Middlefield, NY is still undecided, and in any event, both cases are expected to result in appeals.  Additionally, as we recently saw in Pennsylvania, state legislatures may easily be swayed by industry to crush municipal zoning authority, regardless of what the courts may say. 

That’s why, as I stressed in my last post, legislation – such as the bills recently proposed by Assemblywoman Lifton and Senator Seward – clarifying and codifying the time-honored right of municipalities to protect their residents and their communities, is needed now, before any new frack wells are drilled in New York.

As always, NRDC will continue to closely follow and be involved in any new developments on the New York home rule front, and expect updates as the battle continues.  For now, though, there is real cause to celebrate.


More good news! Last Friday, another judge confirmed that municipalities have the right to zone out fracking entirely from their borders.  Judge Cerio issued a ruling regarding the challenged fracking ban in Middlefield (discussed above), and similarly upheld the ordinance as a permissible use of the town’s zoning authority. (See full opinion here).  No doubt this is not the end of story, as industry has threatened appeals and the Legislature continues to consider bills that would clarify municipalities' zoning rights over fracking.  Stay tuned for further updates.

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Mary SweeneyFeb 22 2012 06:03 PM

I am very happy about the decision in the Dryden case, and I believe that local governments should be able to limit or exclude oil and gas activities within their borders.
However, I would like to point out that there is a very serious question of environmental justice to consider. It may be the case that some communities--especially poorer communities--will be tempted to allow shale gas extraction within their borders, allowing the wells to be sited even in residential areas or next to their children's schools. Current NY setbacks are grossly inadequate to protect people living in those residences or attending those schools.

We should be very careful not to create a two-tiered system in NY in which some people living in some towns are protected from the dangers of shale gas extraction while other people are forced to live in unsafe "sacrifice zones."

I have been following the shale gas issue very closely for almost 4 years, and I am convinced that the technology does not exist to make this a reasonably safe process. It is certainly NOT a process that is safe enough to have in residential areas or near schools or water supplies in any towns, anywhere.

Stan ScobieFeb 23 2012 10:45 PM

I believe that findings such as we now have here for Dryden, NY are a good start on the path to the implementation of the principle of informed consent.

It took the medical community in the U.S. quite a few years to recognize that this principle speaks to the very fundamental right of individuals to informed self-determination.

The idea of "home rule" for communities represents this same principle on the level of about the smallest community organization.

It recognizes that larger units of community organization, counties, states, nations, etc., do not have a correct one-size-fits-all solution to all issues.

In this case it begins to recognize that states and counties do not have to live with the impacts of the industrialization of the land by hydrocarbon extraction - people and neighborhoods do.

It begins to recognize that generally people do not choose to live near heavy industrialization processes - regardless of the convenience or economic gain for others.

The current general lack of recognition of this is also manifest in the common implementation of "forced pooling" of lands for oil/gas extraction - a common legal structure that is quite friendly to drillers and generally very unfriendly to residents. It is also unjustified for the now most common form of natural gas extraction - from shale which does not exist in "pools" that can be drained by others.

Stanley R Scobie, Ph.D., Bighamton, NY

Les RogersMar 1 2012 09:27 AM

For years now I've been hearing about the horrible effect that practice of hydrofracking has on nearby aquifers.

Induced hydraulic fracturing is a artificial process where a where a well bore is drilled into a rock formation containing petroleum, natural gas, or coal steam gas.

Then a chemical mixture of compressed gasses like nitrogen, carbon dioxide, and sand containing radioactive minerals is used to force the extraction of petroleum and natural gases.

In 2004 an EPA study found that hydrofracking posed no threat to ground water, however in 1987 an E.P.A. report found that James Parson's well in Jackson County West Virginia, drilled by Kaiser Exploration and Mining Company, contaminated the groundwater.

In 2006 methane and drilling fluids contaminated ground water near a gas well in Clark, Wyoming. Over 8 million cubic feet of methane was released.

Around the same time in Dimock, Pennslyvania 13 wells were found to be contaminated with methane from the same hydrofracking practices.

I'm glad they've temporarily halted this process in Dryden, NY.

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