Wednesday, October 3, 2012

Court rules against Binghamton fracking moratorium: Home Rule supporters win key points in broader fight

In another test case for Home Rule, the New York State Supreme Court struck down a moratorium by the City of Binghamton on shale gas development, but upheld the foundation of a legal argument on which local municipalities are basing efforts to control or ban drilling and related operations within their borders.

Both sides of the debate claimed victory in a ruling Tuesday by New York Supreme Court Judge Ferris Lebous. Lebous ruled that the city’s moratorium on drilling was not valid because drilling was not proven to be an impending crises and the city lacked a dire need to prevent it. That ruling was a clear victory for a group of landowners who had brought the suit against Binghamton Mayor Matt Ryan and the City Council, which enacted the moratorium last December. The law would have prohibited drilling, exploration, gas storage and disposal of drilling waste within the city limits.

The Marcellus Drilling News, a pro-fracking blog, summed up the position of those eager to see the industry begin developing the Marcellus Shale and other formations underlying Upstate New York: “All in all, Lebous’ ruling was a victory for landowners and for those who support the right of landowners to allow drilling on or under their property if they want to.”

The influence of the ruling (embedded below) on future cases will likely run deep, and possibly counter to the interests of fracking supporters. While Lebous struck down the ban due to circumstances and context unique to the Binghamton case, he affirmed the state’s ruling in favor of bans in two other controversial cases that collectively represent a key bit of case law in the larger home rule debate. In supporting bans in the town’s of Dryden and Middlefield, Lebous wrote:

In well-reasoned, well –founded decisions, determined that ELC-23-0303(2) [the state law governing gas development] does not supersede local government’s rights to regulate the use of lands within their jurisdictions.

Helen Slottje, who represents municipal interests in controlling shale gas development, saw the Lebous ruling as “a huge victory.” (Click here for a full statement from the Community Environmental Defense Council.) Slottje explained:

On the narrow question of the specific (non—land-use) enactment mechanism relied upon by the city in connection with passage of its two-year law, the court found the city’s law was invalid because … the law should have been enacted on a different basis. But on the broader question of the city’s legal authority to enact a pro-active law prohibiting gas exploration, extraction and storage activities the court explicitly adopted the “well reasoned and well founded” decisions in the Dryden and Middlefield cases.
The court also ruled that local laws (as with Dryden and Middlefield) are not pre-empted by the state’s Gas Mining Law, the interpretation of which is a crucial aspect in all home rule cases in New York.

The issue is far from resolved. The New York State Supreme Court, the state’s lower court, is the starting point of a legal contest weighing people’s rights to exploit their land against a town’s rights to determine land-use policy in the best interest of local residents. The industry is working on an appeal to the Dryden and Middlefield cases, which will be filed this month, according to industry lawyer Tom West.



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