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Can NY Towns Just Say “No” To Fracking?

PHOTO: Dryden, a town of 14,500 near Ithaca, is watching an appeal of a ruling that it had the right to ban fracking for natural gas. Courtesy Town of Dryden

PHOTO: Dryden, a town of 14,500 near Ithaca, is watching an appeal of a ruling that it had the right to ban fracking for natural gas. Courtesy Town of Dryden


March 21, 2013

DRYDEN, N.Y. - Do towns and municipalities have a say over whether their land can be used for fracking (extracting oil and natural gas from underground shale formations)? That question will be argued in two cases before a New York appeals court today - one involving Dryden, the other Middlefield.

Dryden, a rural town of 14,500 near Ithaca, passed a zoning ordinance in 2011 prohibiting oil and gas drilling, including fracturing. An oil company sued, saying the state's Department of Environmental Conservation should make the decision, not the community.

Town Supervisor Mary Ann Sumner backed the ordinance and was resoundingly re-elected to office last year. Only Dryden residents know what's best for their town, she said, and they're concerned about the water and the environment.

"Do we have that choice, or will we leave it to people in corporate offices thousands of miles away who know nothing about our lifestyle?" she asked, rhetorically.

Initially, a judge ruled in the town's favor, but the ruling is being appealed by Norse Energy, a Norwegian-based company with U.S. headquarters in Buffalo. The company is arguing that the state's pre-emption power supersedes municipalities' home rule.

Deborah Goldberg, an EarthJustice attorney arguing the case for Dryden, denied that the towns of Dryden and Middlefield trying to regulate the gas drilling industry.

"They recognize that regulating the industry is a matter for the state," she said. "But the town of Dryden is exercising its constitutionally-protected local power to regulate land usage through zoning."

Harvard Law School lecturer Shaun Goho, an expert on environmental advocacy and citizen lawsuits, said the court's ruling will not be binding on other states in a strict legal sense, but could set a marker.

"There are real, local concerns at stake here, not just regarding the local impacts of fracking but also about local governments' interest in protecting their traditional zoning powers," he said. "In that sense, cities and towns all across the country will be watching the outcome of this case."

The Appellate Division is expected to hand down a decision in late April or May. Gov. Cuomo's administration has missed several self-imposed deadlines for announcing regulations for fracking.

Mark Scheerer, Public News Service - NY
 

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