Home Rule Prevails! Towns Allowed to Ban Fracking

JUNE 30, 2014 ONEONTA DAILY STAR

Towns allowed to Ban Fracking

--- The Daily Star

Local governments in New York have the authority to zone out gas drilling and other forms of heavy industry, the state's highest court decided today in a 5-2 ruling that grew out of challenges brought against fracking bans enacted by the towns of Middlefield and Dryden.

The Court of Appeals signaled in the majority decision that it was not focused on the merits of the bans but on the legal authority of the towns to enact keep out drilling - a move the industry claimed superceded their authority.

  "The towns both studied the issue and acted within their home rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately-cultivated, small-town character of their communities," according to the majority ruling

"This is a victory for both home rule and our towns," Middlefield Town Supervisor David Bliss told The Daily Star.

Middlefield's ban, enacted in 2011, was challenged by Cooperstown Holstein Corp. The company is owned by Middlefield dairy farmer Jennifer Huntington. She had leased her farm land to a gas company she said was only interested in placing a conventional gas well on her land, not an operation involving the more controversial process known as horizontal hydraulic fracturing for natural gas trapped deep within the earth under layers of shale.

Dryden's ban was challenged by Norse Energy, a company based in Norway.

More than 170 towns, cities and villages in New York have enacted either moratoriums or bans on drilling since Middlefield and Dryden became among the first in the state to keep out drilling.

NYS Court of Appeals, Tuesday, June 3: Can Cities & Towns Ban Fracking? GET READY, MORRIS!

Tuesday, the New York State Court of Appeals will hear arguments in a case that poses a simple question: Can cities and towns in the Empire State fend off potentially devastating environmental and economic damage by banning hydraulic fracturing through their zoning code?

Our answer — as stated in an amicus brief filed on behalf of then-Manhattan Borough President Scott Stringer and Elected Officials to Protect New York, a nonpartisan network of over 800 current and former municipal officials from all of the state's 62 counties — is an emphatic yes.

For decades, New York law has acknowledged that municipalities are far better situated to determine what land use is appropriate for their territory. In 1970, the state Legislature passed a groundbreaking Environmental Protection Law which acknowledged the importance of "[l]ocal participation in planning activities which influence the ecological balance on the locality and therefore the state."

While the Department of Environmental Conservation has imposed a blanket ban on fracking in the watersheds of Syracuse and New York City to protect the health of nearly half the state's residents, many residents of upstate towns have rightly wondered, "If fracking isn't safe for city dwellers, by what logic is it safe for us?"

As it turns out, many towns aren't waiting for the state to finish its analysis. As evidenced by the more than 175 New York municipalities that have already enacted bans and moratoria on fracking within their borders — often in the face of costly lawsuits threatened by the oil and gas industry — concerns about the effects of fracking on public health and quality of life have united communities large and small, from Otsego to New York City.

Indeed, our collaboration and the coalition assembled by EOPNY stand for the proposition that when it comes to fracking and its effects on our way of life, upstate and downstate are in this together.

Our argument to the court seeks to protect the long-standing right of municipalities to make their own land-use, local control decisions by emphasizing the powerful justifications for local bans: significant scientific evidence linking fracking to water contamination by heavy metals, radium and methane; municipal and social ills due to increases in crime and stresses on social and emergency services; and economic costs including catastrophically expensive road damage and the specter of declines in property values.

In fact, a 2011 report from the state Department of Transportation found the cost of increased heavy traffic alone could result in the need for repairs and reconstruction ranging from $211 million to $378 million annually.

In the six months since the brief was filed, our position has only grown stronger as new studies have showcased the threat of water contamination and health and community impacts imposed by fracking. One example is the growing evidence linking fracking and its wastewater disposal to earthquakes, which can occur miles away from the wells themselves.

The case being argued Tuesday comes from the communities of Dryden and Middlefield (population 1,869 and 1,962, respectively). The towns argue that banning fracking through the zoning code comports with their rights to make land use decisions appropriate to their unique neighborhoods. In contrast, the gas companies challenging the towns have asserted that only the state can regulate oil and gas extraction, despite the fact that cities and towns across New York have long used zoning to facilitate the "adequate provision of transportation, water, sewerage, schools, parks and other public requirements" in concert with the character of the community.

Dryden, Middlefield and scores of other towns have rightly seen fit to protect their towns from the harms associated with fracking. These actions are firmly grounded in constitutionally granted Home Rule powers and the duty of all municipalities to protect their citizens' health, safety and welfare. We stand firmly for the right of any community to do the same.

Scott Stringer and Julie Huntsman

 

Scott M. Stringer is the New York City comptroller and a former Manhattan borough president. Julie Huntsman is an Otsego councilwoman and co-coordinator of Elected Officials to Protect New York.

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