Above: The board of the Town of Dryden unanimously passes a ban on gas drilling on August 2, 2011. Video by ShaleShock, an anti-gas drilling media group.
The first shots in what is likely to become a statewide battle were fired recently, as two lawsuits in New York State Supreme Court -- one filed by a local dairy business, the other by a Colorado gas drilling company -- seek to overturn town bans on gas drilling.
On Thursday, September 15, the Otsego County dairy farm Cooperstown Holstein Corporation filed suit against the Town of Middlefield, which passed a law this June banning gas drilling. The Daily Star reports:
The lawsuit seeks to declare the provisions of the town's zoning law pertaining to oil and gas drilling void and in violation of New York state law, [Cooperstown Holstein's lawyer, Scott] Kurkowski said.
The goal is to establish precedent in this case, he said.
On Friday, September 16, the Anschutz Exploration Corporation filed suit against the Tompkins County town of Dryden, which passed a resolution last month banning gas drilling. The Anschutz lawsuit is the first of its kind by a gas company, but likely not the last. Reuters reports:
Anschutz, which controls more than 22,000 acres in Dryden, said New York's Environmental Conservation Law bars local governments from any regulation of drilling.
Officials in Dryden and other towns considering their own restrictions on gas extraction say the law prohibits them only from regulating the drilling itself and not from saying where or whether it can take place.
At the heart of this legal contest is a disagreement over how to interpret a small snippet of Article 23, the New York State law governing gas drilling:
The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.
The New York State Department of Environmental Conservation, which governs gas drilling, has included language in several recent drafts of gas drilling regulations that indicate that they will look more closely at applications for drilling permits if the drilling conflicts with local land-use law.
But the agency stopped short of saying that local gas drilling bans would have the full force of law, proposing that any conflicts between local zoning and land use by a gas drilling company would trigger an additional review of the company's permit by the DEC.
Towns across New York State will be watching these cases closely to see how the courts interpret home rule with regard to gas drilling.
Even in towns whose elected officials support the idea of passing zoning laws against gas drilling, the threat of lawsuits from gas companies and landowners worries town leaders.
The Ulster County town of Saugerties, which is in the process of doing a comprehensive update of its zoning laws, passed a resolution in July calling on New York State to ban hydraulic fracturing in the town.
Saugerties deputy supervisor Fred Costello Jr., who spoke with the Watershed Post by phone shortly after the resolution was passed, said that even if the courts rule in favor of town zoning ordinances, the lawsuits could be very harmful to towns.
"If you're going to argue whether the zoning ordinance or the state is the governing rule, just having that argument is very expensive," he said. "The fear is that even with the state supporting home rule, we still could get buried legally. We'd certainly be willing to fight it, but it's beyond our means."
Costello said that the Saugerties comprehensive planning committee was working on a draft of local zoning regulations that would exclude gas drilling, and that the idea of asserting home rule over gas drilling has broad support among the town's elected officials. But Costello worries that Saugerties may be biting off more than it can chew.
"In my opinion, I think the state's going to have to be the ultimate regulator," he said. "These issues are beyond the resources of local communities to deal with. You're going to deal with companes that are much larger than the local municipality."
