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State high court upholds locals' right to ban fracking

The New York Court of Appeals ruled June

The New York Court of Appeals ruled June 30, 2014, that municipalities have a right to ban hydrofracking if it violates zoning regulations. These demonstrators were outside the Democratic State Convention May 22, 2014, in Melville. (Credit: Jessica Rotkiewicz)

ALBANY -- New York's highest court ruled Monday that municipalities may prohibit drilling for natural gas within their boundaries in a decision that is expected to impact whether or how Gov. Andrew M. Cuomo expands the practice.

The Court of Appeals ruled 5-2 that local governments may use local zoning rules to prohibit drilling, through the "hydrofracking" method, deep into an upstate shale deposit. Environmental groups say the process, which shoots water and chemicals deep underground to extract gas, threatens public health and the environment.

The decision could ease Cuomo's long-delayed and politically tricky decision on whether to expand natural gas drilling.

Polls show New Yorkers are split on the issue. But Monday's ruling means local governments that want to keep drilling out of their backyards could easily do so. That could avoid complex negotiations in Albany, while potentially avoiding some lengthy court challenges by local governments. Dozens of communities have acted to oppose hydrofracking within their boundaries.

Although the decision applies to two cases involving two rural towns -- Dryden and Middlefield -- all sides said its implications are far-reaching.

"This is not just an effort in New York State," said Manhattan attorney Deborah Goldberg, who represented Dryden. "There are communities all over the country that are being adversely affected by the oil and gas industry that are fighting back. We hope this decision will inspire them."

Environmental groups applauded the ruling.

"As other states roll over for a very deep-pocketed fracking industry, communities throughout New York -- large and small -- have challenged them and won!" said Katherine Nadeau, policy director for the statewide group Environmental Advocates.

But the Joint Landowners Coalition of New York said the state's power to regulate energy development "has been obliterated by the court in favor of a not-in-my-backyard mentality."

Attorney Scott R. Kurkoski, of Binghamton, who represented Cooperstown Holstein Corp. farmers seeking to protect their lease agreements with energy companies, called the decision "damaging to New York's contribution to America's energy independence."

The case focused on the state Oil, Gas and Solution Mining Law. The Norse Energy Corp., with drilling leases in Tompkins County and Otsego County, based much of its argument on a provision that says the state oil and gas regulating law "shall supersede all local laws . . . relating to the regulation of the oil, gas and solution mining industries." Norse and the Cooperstown farmers argued that provision supports a statewide energy policy set in Albany.

The court ruled local governments have the right to avoid "drilling (which) would permanently alter and adversely affect the deliberately cultivated, small-town character of their communities," Judge Victoria Graffeo wrote for the majority. Graffeo was appointed by former Gov. George Pataki, a Republican.

In the court's hearing in June, Chief Judge Jonathan Lippman told the attorneys: "You don't bulldoze over the voice of the people in an individual municipality that wants a say in how they live their lives."

Judges Eugene Piggott and Robert S. Smith disagreed. They said the majority had read the powers of local zoning laws too broadly, and that the towns sought to regulate the oil and gas industry -- a duty of the state Department of Environmental Conservation -- "under the pretext of zoning."

"Where zoning ordinances encroach upon the DEC's regulatory authority and extend beyond the municipality's power to regulate land use generally, the ordinances have run afoul" of the state law, Piggott said.

The court said the state could pass a new law in which state energy policy would overrule local zoning laws, but most of the legislature dominated by Democrats already opposes hydrofracking or supports a moratorium.

The court wouldn't rule on whether hydrofracking should be expanded.

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