Court battle challenges town ban on fracking

Posted at: 03/21/2013 6:25 PM
By: Dan Bazile

ALBANY -- The battle started a year ago when the gas drilling industry challenged a ban from a Central New York town. They lost. The case is now with the appellate court. Attorneys from the pro-fracking side argued before the four-judge panel that towns do not have the right to ban high volume hydraulic fracturing.

"We have a national and state policy to promote this resource. We need it to avoid importing foreign oil, to ovoid fighting wars over foreign oil," said Tom West, an attorney representing Norse Energy.

The policy is a 1981 law that came out of the 1970's energy crisis. It says regulation of oil and gas rests with the state and supersedes local ordinances. West said allowing towns to ban fracking would create a messy process not worth the millions in investments.

"There's no room for the municipalities to tell you where to go," West said.

But the other side argues that municipalities can  tell you where to go with local zoning laws. The case before the judges stems from a lawsuit out of the town of Dryden in Tompkins County. The town won a lower court decision to uphold its ban on gas drilling development. Its lawyers told the appellate court judges that the 1981 law is about regulation, not zoning.

"We think that's an absurd interpretation of the law. The legislature has never given carte blanche to an industry to do something like that before," said Deborah Goldberg, the attorney representing Dryden.

The anti-fracking group said towns have the right to protect its citizens and zoning gives them the power to choose.

"Home rule is the right thing to do. We should be able to choose what industry comes into our community lives," Dryden town resident Marie McRae.

Pro-fracking lawyers argued that landowners are also prevented from developing their resource. That's part of another case brought before the court where one landowner in the town of Middlefield sued for the right to allow drilling on her land after her town banned gas drilling.

"That'll be the next step in the process. The landowner will have to sue for the taking of their mineral rights," West said.

A decision is expected in about six to eight weeks. No matter what happens, both sides promise to take the case to the state court of appeals.