Fracking company files in state’s highest court against town-level bans

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Dryden, New York. (dryden.ny.us)
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ALBANY—Attorneys filed briefs with the state's highest court on Monday in a case that will determine whether or not municipalities can ban hydrofracking within their borders.

The town of Dryden, near Ithaca, banned fracking within its borders in 2011, a strategy repeated by dozens of upstate communities including Albany. More than 100 have imposed bans on drilling activities.

Norse Energy, represented by attorney Tom West, argues in a brief filed with the state Court of Appeals that municipalities don't have the right to restrict the drilling industry under state law. In a related case, a farmer in Middlefield, in Ostego County, argued that a fracking ban was preventing her from making money from the gas wells planned on her land.

West said municipalities don't have the right to restrict the activities of the mining and drilling industries under the state's oil, gas and solution mining law. The lower courts have found Dryden wasn't trying to restrict the industry, and that its regulation of land within its borders was permissible.

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West said town boards have the right to making zoning decisions on buildings, but do not have authority to override a state law that protects drilling activity. In the brief filed on Monday, he argued current state law protects the right of all landowners, including those who wish to sell the mineral rights on their property.

“Because the town prohibition bans activities for which control, oversight and regulation are expressly, exclusively and exhaustively delegated to state authorities, the town prohibition is preempted by state law,” he wrote.

He wrote that state law already regulates the “how” as well as the “where” of drilling.

West said giving communities the right to ban oil and gas drilling within their borders will set a dangerous precedent that could effectively kill off the state's hydrofracking industry. Allowing municipalities to impose bans will force out the tens of thousands of jobs that could be created if the state ever decides to lift its moratorium on drilling new wells.

“It sends a strong signal to industries that New York state is off limits to development,” West said.

Opposition briefs in the case are due in December and a final decision is not expected until next year.

Dryden sits on top of the Marcellus shale, which stretches through Pennsylvania, Ohio and West Virginia. Hydrofracking removes natural gas trapped deep within the rock by injecting it with chemical-laden water and sand. There are currently 13,000 active gas wells in New York, mostly across the southern tier and the Western part of the state, that are shallower and do not use the banned methods of high-volume fracking and horizontal drilling. West said the moratorium has already cost New York jobs because many companies moving in to the region built their headquarters in Pennsylvania, where the industry is booming.

Joanne Cipolla-Dennis helped rally her fellow Dryden residents against hydrofracking. She and her wife paused construction on their new home for two years because they were worried that, without a ban, their land and water could become polluted and their property value would plummet. She said Dryden's ban, if it's upheld by the state highest court, will give hope to people fighting fracking across the country.

“This is not just about the people of Dryden and Tompkins Country, this is for all of New York and all of the country,” she said.

A recent Siena College poll found 43 percent of the state's residents oppose fracking, while 38 support it.

The state's lower courts have upheld those bans, and the Court of Appeals agreed to hear the case in August.

New York has had a moratorium on fracking since 2008. Gov. Andrew Cuomo has said he'll decide whether or not to lift that ban once the state Department of Health completes a study. And yet, that study, which was supposed to be completed months ago, still has no due date.

West said the willingness of the state's highest court was a good sign for the industry after the two lower courts upheld the bans. He said the Court of Appeals overturns lower court decisions more than half the time.

Norse Energy shuttered its U.S operations earlier this month and declared bankruptcy after it could not sell pipelines' right of way and gas leases on the 130,000 acres it owns across the state. West said the state's regulatory environment was directly responsible for Norse's demise. He said he's still representing the case because the issue is so pressing to the industry and expects that another company wil take over the leases for Norse.