In Blow to Oil Industry, New York's Top Court Upholds Local Fracking Bans

Mon, 2014-06-30 12:15Sharon Kelly
Sharon Kelly's picture

In Blow to Oil Industry, New York's Top Court Upholds Local Fracking Bans

New York's highest state court ruled today that local governments have the legal authority to use zoning to bar oil and gas drilling, fracking and other heavy industrial sites within their borders. In a 5-2 decision, affirming the rulings of three lower courts, the justices dismissed challenges to fracking bans created by two towns, Middlefield and Dryden.

The case has been closely watched by the oil and gas industry in the Marcellus region and nationwide. Over 170 towns, villages and cities in New York state have crafted local moratoria or bans on fracking. Dozens more towns are expected to enact moratoria in the wake of this ruling, according to Earthworks, one of the public interest groups whose attorneys worked on the case.

Nationwide, nearly 500 local governments have enacted measures against fracking, according to Food and Water Watch which tracks local control actions, including towns in Texas, West Virginia, Pennsylvania, Colorado and California, each of which have been the focus of recent shale rushes.

The oil and gas industry had argued that allowing local control over fracking risked creating a patchwork of rules in different municipalities. Environmental groups countered that the rights of local communities to control development within their borders trumped those concerns, and that local governments had the clear legal authority to decide how development could proceed.

“On the one hand, you're saying yes, we should have a comprehensive strategy to deal with such an important issue to our state – energy,” Chief Judge Jonathan Lippman explained when the cases were argued before the court on June 3. “And on the other hand, municipalities believe (they can) determine how they're going to live. They want some voice in how they live.”

Today, less than a month later, the court's majority decided in favor of local control. “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,” the New York Court of Appeals wrote in its majority ruling.

The fracking bans represented a “reasonable exercise” of the towns' zoning authority, the court said in its opinion, written by Judge Victoria Graffeo.  “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,” Judge Graffeo wrote.

The decision drew praise from legal experts.

“Town by town, New Yorkers have taken a stand against fracking. Today’s victory confirms that each of these towns is on firm legal ground,” said Helen Slottje, an Ithaca-based attorney whose legal research inspired New York’s local fracking ban groundswell and who was honored with the 2014 Goldman Environmental Prize. “The anti-fracking measures passed by Dryden, Middlefield and dozens of other New York municipalities are fully enforceable,” said Slottje.

The cases began in September 2011, when the town of Dryden (population 14,500) was sued by Anschutz Exploration Corp, over a ban that precluded drilling on 22,000 acres of land leased by Anschutz. Anschutz abandoned most its leases in the region in September 2012, and Norse Energy, a drilling company based in Norway, bought up some of Anschutz's acreage and pursued the appeal. Norse filed for bankruptcy in December 2012, but the legal battle continued.

New York has maintained a statewide moratorium on shale gas extraction since 2008.

Several lower court judges previously upheld the use of zoning to ban fracking should that moratorium run out, including an Albany appellate court decision last May. Another ban, covering Avon, New York was also upheld by local courts this April.

Legal battles over local control are underway in several states. A ballot measure in Colorado would shore up legal authority for local bans in that state if approved this November.

The decision represents the latest legal setback for the oil and gas industry. Last week, a Texas judge upheld a $3 million jury verdict for a Texas family whose health was harmed by drilling near their home.

The New York court was clear that it was not making its decision based on the debate over fracking's health and environmental impacts, saying that state law left those policy decision up to elected officials.

“These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits,” the ruling said.

The state Supreme Court in neighboring Pennsylvania, on the other hand, directly addressed the impacts of fracking in a court ruling issued last December that upheld the right of Pennsylvania towns to control fracking within their borders.

“By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction,” Pennsylvania Supreme Court Chief Justice Ronald Castille wrote in his December 19, 2013 opinion.

Those types of concerns have helped to drive the burgeoning local control movement.

Heavy industry has never been allowed in our small farming town and three years ago, we decided that fracking was no exception,” said Dryden Town Supervisor Mary Ann Sumner. “I hope our victory serves as an inspiration to people in Pennsylvania, Ohio, Texas, Colorado, New Mexico, Florida, North Carolina, California and elsewhere who are also trying to do what’s right for their own communities.”

Previous Comments

The ground water in an aquifer about 100 ft below our property in NW NSW, Australia is so clean it could be bottled and sold as mineral water. We use it for domestic supply and watering livestock. Probably 1,000 ft or more below the aquifer lie the strata that the frackers are keen to get into. But to get to those, they have to drill through the aquifer and install a (steel-cased) bore.

We have been told by gas-proponents that this procedure is quite safe for the aquifer, because after the gas well is decommissioned the bore will be filled with concrete and thus sealed. However, I for one do not believe this. 

Concrete I believe hardens for about 100 years after setting due to reaction with CO2 in its environment, essentially becoming limestone. Then it weakens again, just as limestone weathers and weakens over time, and for much the same reason: reaction with carbonic acid, which latter forms when CO2 dissolves in water.

Modern concrete is based on Portland cement, invented in 1820. There are few concrete structures around today more than 100 years old. But that aquifer must remain sealed against leakages out and leakages in for as long as there are likely to be people around who want to use the water. That optimistically is thousands and even millions of years, by which time the bore casing will have long since rusted out, the concrete corroded and disintegrated, and the fracking company long gone and no longer legally liable for anything it did; about as liable today as the Present Egyptian government is for work done by the pharaohs, or the original contractors who cut the Panama Canal are for deficiencies in that engineering marvel.

I would guess that coal seams and carboniferous shales are generally older and deeper than aquifers, and that this problem would be more often encountered than cases of gas over water. And that is before we deal with the greenhouse warming due to combustion of the gas.

So we want the carbon supply left where it is, so we can continue to enjoy our water supply.