Thursday, May 2, 2013

NY Appellate Court upholds Home Rule fracking ban Landmark case critically linked to Marcellus development

New York’s anti-fracking movement scored a critical victory today in a landmark case testing the right of local governments to ban fracking.

In a much-anticipated decision, the state’s Third Appellate Division upheld a ruling  giving local governments authority to ban the controversial practice of unconventional drilling and well-stimulation techniques – including high volume hydraulic fracturing -- to extract petroleum from bedrock.

Today’s ruling comes after the shale gas industry appeal of a February, 2012 decision by a lower court favoring the right of local governments to ban drilling. The appeal was based on an argument that legislation amending the Oil Gas and Solutions Minding Law gave the state, not local governments, exclusive jurisdiction over wells.

In today’s appellate court ruling, the three-judge panel unanimously agreed that the oil and gas law did not reflect legislative intent to “pre-empt a municipality’s power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders.”

This theme was reiterated emphatically throughout the 15-page ruling:

We find nothing in the language, statutory scheme or legislative history of the (Mining Law) statute indicating an intention to usurp the authority traditionally delegated to municipalities to establish permissible and prohibited uses of land within their jurisdictions. In the absence of a clear expression of legislative intent to preempt local control over land use, we decline to give the statute such a construction.

Industry attorney Tom West said his legal team will file for an appeal, but it is up to the discretion of the state’s high court whether to hear the case.

Home Rule bans are supported by activists who fear shale gas development, including the use of high volumes of undisclosed chemical solutions injected into the ground to fracture shale and release gas – poses unacceptable threats to environment and public health. Activists praised the court’s decision to uphold local bans, while using the victory to encourage broader opposition.

“The real solution to this problem is for the state to ban fracking, but until that happens, local governments have a responsibility to protect their citizens from the oil and gas industry,” Kelly Branigan said in a statement. Branigan is a founding member of Middlefield Neighbors and a member of New Yorkers Against Fracking. Residents of the towns of Middlefield and Dryden supported the bans, which were legally challenged by Anschutz Exploration and Norse Energy.

The Marcellus and Utica shalea, some of the largest gas reserves in the world, extend throughout Pennsylvania, New York, and Ohio. Today’s ruling could have a profound impact on the future of shale gas development in the Empire State. Unlike conventional gas development, which tends to be geographically limited, the footprints of shale gas resources cover large regions. Uncertainty over jurisdiction from one town to the next can be a critical disincentive for drillers. Absent a successful appeal, according to West, the prospects of large scale shale gas development in New York are dim.  “This sends a signal to the industry that New York is not stable,” he said. “You can invest millions of dollars to lease in New York and be at the mercy of a 3-2 town hall vote.”

Which is exactly why grass roots activist like it. Local control of the gas industry is a “David and Goliath battle,” said Branigan. “This decision shows that our democracy in New York State still works.”

Permitting for gas wells in New York has been on hold for five years, pending the outcome of a policy review by the state Department of Environmental Conservation accounting for environmental and health impacts. That review, called the Supplemental Generic Environmental Impact Statement (SGEIS) has no timetable for completion, Department of Health Commissioner Nirav Shah said yesterday.

The battle continues, and shale gas development is still a real possibility in certain parts of the state despite today’s ruling. There are municipalities that support gas development, including many in Southern Tier counties that are adjacent to productive gas fields in Pennsylvania. If shale gas development were to begin in New York, it would be here, according to a plan floated by Governor Mario Cuomo last year.  The incentive to develop these areas in Broome, Tioga and Delaware counties are strong, because the geology is promising, they are close to major pipelines, and there is relatively little opposition from local town boards.

1 comment:

  1. What would be so interesting is to see billing rates of legal representation (presented in the attachment). I'm only guessing here, Sidley and Austin's average billing rate representing API is higher than Deborah Goldberg's representing the city of Dryden. Just a guess.