NY court to consider legality of fracking bans

By Casey Seiler
Times Union

ALBANY, N.Y. — The state’s top court has decided to weigh in on a pair of lawsuits that could determine whether local governments have the power to ban the controversial natural gas production technique known as hydrofracking.

The cases that soon will be heard before the Court of Appeals pit an Otsego County dairy farm against the Town of Middlefield, and Norse Energy Corp. against the Town of Dryden in Tompkins County. The court’s decisions to grant the pro-fracking plaintiffs’ motions for appeal were announced by New York’s highest court on Thursday.

In May, a four-judge panel of the state Appellate Division upheld lower court decisions that found the state’s Oil, Gas and Solution Mining Law did not deny the supremacy of localities to institute bans such as those voted into force by the two towns.

When that decision came down, legal observers noted that the odds were stacked against the Court of Appeals reviewing the case because the Appellate Division’s ruling was both unanimous and did not overturn a lower court’s action. In May, Albany attorney Thomas West, who represents Norse in the Dryden appeal, called the Appellate Division’s decision “another nail in the coffin for drilling in New York.”

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Energy companies, he said, aren’t going to plunge resources into leases for drilling rights on land that can be swept out from under them by “a 3-2 town board vote.”

On Thursday, West called the announcement that the appeals can proceed “a good sign that the court recognizes that this is a novel case, and one of statewide importance.”

While the drilling industry was exultant, opponents of fracking expressed hope that the Court of Appeals would further cement state law to allow communities to decide what type of energy development to allow.

“We are confident that the Court of Appeals will affirm, as two other courts have before it, that our town has the right, enshrined in our state Constitution and upheld by the courts, to decide how land is used within our town borders,” said Dryden Town Supervisor Mary Ann Sumner in a statement. “Still, the oil and gas industry is dissatisfied and stubbornly insists on dragging out this court case. Clearly, they’re not used to not getting their way.”

Norse, which holds drilling leases on roughly 130,000 acres in New York State, declared bankruptcy in December; last month, a court approved its plan to move ahead with an asset sale. West said it was unlikely any change in ownership would take place before the Court of Appeals concluded its deliberations. If that were to happen, he would have to secure the new leaseholders as plaintiffs.

Cooperstown Holstein Corp., the plaintiff in the Middlefield case, is a dairy farm whose owners have leased their 400 acres for natural gas development.

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The website FracTracker lists 62 local bans — including those in Albany and Guilderland — and 111 moratoriums passed by municipalities around the state.

The court’s decision adds another twist to the ongoing debate over high-volume horizontal hydraulic fracturing, in which a large amount of water and a small amount of chemicals are injected deep underground to break up gas-bearing shale.

Industry proponents insist the method is safe and that development is critical in the economically challenged Southern Tier, which include the massive Marcellus Shale formation. Opponents say the risks to human health and the environment outweigh the potential benefits.

That state remains in a holding pattern as it contemplates whether to allow the process. Gov. Andrew Cuomo is awaiting the completion of the Department of Environmental Conservation’s massive regulatory blueprint, which has been held up most recently by the state Health Department’s ongoing review of a key health-impacts chapter of the DEC’s work.

Polls have shown a persistent split in public attitudes toward fracking even as the percentage of New Yorkers without an opinion on the question has dwindled. A Siena Research Institute poll released earlier this month showed statewide support for DEC approval of fracking at 41 percent, with opposition at 42 percent. Only 12 percent of respondents said they had no opinion or lacked enough information.

Also Thursday, onetime fracking skeptic state Sen. Greg Ball announced his support for the state moving ahead with fracking using a phased-in approach — a plan similar to one floated last year by the Cuomo administration that would allow for limited implementation in communities that approve it.

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The Putnam County Republican’s concern about fracking led him to receive a 2011 guided tour of Pennsylvania’s drilling region from Josh Fox, director of the Oscar-nominated anti-fracking polemic “Gasland” and its recent sequel.

“I firmly believe it is now time for New York State to put in the proper protections and begin an incremental approach by allowing fracking in up to six counties,” Ball wrote in an op-ed piece explaining his new stance. “Let me also be very clear, that to do so, these protections and regulations must be backed with the funding and manpower necessary to hold the industry completely accountable.”