rss

New York

Communities and many environmental groups in New York State feel elated about recent court decisions upholding New York local municipalities zoning-out shale gas drilling and fracking under their constitutionally recognized home rule authority. We wish them well but…

We’re not so excited.

Communities in New York have received, from the governing elite (in this case, the courts), only a respite.  One (or more) of three possibilities is up and coming, and none of them will vindicate communities’ rights to exercise local self-governance:  1. Gas and oil corporate attorneys will appeal the case and the “higher” court will rule that the state’s laws preempt the exclusionary zoning, which amounts to a banning;  2. the corporate attorneys will sue under the “takings” clause of the 5th amendment for lost profits from gas resources and infrastructure, and the courts will make municipalities pay “damages” to frackers intent on legally damaging New York communities;  3. the legislature will strip the municipalities of the power to ban fracking  through land use and zoning ordinances via an amendment to state legislative preemptions on regulating oil and gas extraction, as has happened in Pennsylvania recently with HB 1950 (now Act 13), and is being attempted in Ohio, Idaho, and Colorado.

Then what will New York municipalities do?

Creating the communities we want to live in won’t wait for better state-wide legislation. There are no legislators wearing white hats ready to rescue us. It’s up to us to take on the serious commitment to municipal law-making based on community rights:  the right to protect our health, safety, and welfare; our right to a sustainable and just community; and our right to assert local authority for self-determination in the community where we live.  We either live in communities that can protect themselves from fracking by framing the problem as a denial of democracy and community rights, or we continue to lie to ourselves that it is a legal regulatory issue about drilling and how much harm we have to legally accept under existing law.

It is time for all of us to understand that we don’t have a fracking problem—we have a democracy problem:  It’s about the denial of local self-governance and the need to elevate the rights of communities over the behavior of corporations.

Wales is the only New York town where a rights-based ordinance was adopted, and a ruling against home rule exclusionary zoning authority will not affect it’s ban of fracking.  The communities below are playing by the rules, passing non-rights based ordinances, and are all vulnerable to an adverse ruling by the court and to corporate constitutional attacks. Read the unfolding stories listed below the map.

Interested?  Contact us at info@celdf.org



Sullivan County Democrat: Hunting Club warns town
by Kaitlin CarneySullivan County Democrat
October 16th, 2012
ELDRED — The Highland Field and Stream Club, Inc. filed a Notice of Claim against the Town of Highland as a result of the recently passed Local law No. 3, which bans high-impact industrial uses, including fracking...."[T]he Notice of Claim alleged the Town of Highland violated the constitutional rights of the Highland Field & Stream Club, Inc. by depriving the Highland Field & Stream Club, Inc. of its mineral rights without proper compensation when the town passed Local Law 3 on July 10, 2012, banning gas drilling.”
American College of Environmental Lawyers: CAN A TOWN BAN NATURAL GAS DRILLING USING LOCAL ZONING ORDINANCES?
by Eileen MillettAmerican College of Environmental Lawyers
April 3rd, 2012
For anyone who thought New York State was galloping toward exploration, development and regulation of drilling for natural gas, and for anyone who wondered how and when you’d see the brakes applied, two towns did just that during the third week of February. Using local zoning ordinances, the towns of Dryden and Middlefield banned drilling for natural gas within their geographic boundaries. How they did so, whether they are on solid legal ground for their bans, and what, if anything, the state can or should do to further enhance the development of natural gas are important questions.
New York Law Journal: Upstate Courts Uphold Laws Prohibiting Gas Drilling
by Anthony S. GuardinoNew York Law Journal
March 28th, 2012
In landmark rulings issued within a few days of each other in late February, Supreme Court justices in Tompkins and Otsego Counties have decided that local zoning laws that ban all activities related to the exploration for, and production or storage of, natural gas and petroleum, in one case, and that prohibit "all oil, gas or solution mining and drilling," in the other, are not preempted by the state's Oil, Gas and Solution Mining Law (OGSML) and that they therefore are enforceable.
The Cornell Daily Sun: Another Court Upholds Fracking Ban
by Jinjoo LeeThe Cornell Daily Sun
February 27th, 2012
A New York State Supreme Court upheld the Town of Middlefield’s ban on hydraulic fracturing and gas drilling on Friday, mirroring a decision made Tuesday on Dryden’s hydraulic fracturing ban. The decisions are widely expected to set a precent for cities and towns across the state that have banned fracking. Donald Cerio, Jr., Otsego County Acting Supreme Court Justice, ruled that the Town of Middlefield was in compliance with State law when it passed a ban on oil and gas drilling in June, according to court documents.
The Wall Street Journal: 2nd NY court upholds town ban on gas drilling
by The Associated PressThe Wall Street Journal
February 24th, 2012
ALBANY, N.Y. — While only the state can set rules for oil and gas drilling in New York, local governments have the right to ban the industry from operating within their borders, a state court judge ruled Friday in the second opinion of its kind this week....Albany attorney Tom West said Friday that one or both decisions by trial-level judges would be appealed to the state Appellate Division and, if necessary, the Court of Appeals. "We still remain confident that appeals courts will rule that localities can't ban natural gas exploration," West said.
The Village Voice: Hydrofracking Can Be Banned in Dryden, NY
by Victoria BekiempisThe Village Voice
February 22nd, 2012
A court decided yesterday that the upstate town of Dryden -- located in Tompkins county -- can bar hydrofracking -- marking a major win for fracking opponents. The New York Times reports that Dryden's battle began in August, when the town's board passed a zoning law that bans gas drilling within city limits. The town's decision reflects a nationwide trend, according to the Times: as oil and gas concerns move into populated areas, municipalities are doing whatever they can to keep drillers out. Anschutz Exploration Corporation, which holds the lease on 22,000 acres under Dryden, shot back with a lawsuit, claiming the town doesn't have the authority to regulate drilling.
Gotham Gazette: Will Community Bans on Hydrofracking Hold Up?
by Sarah CreanGotham Gazette
December 18th, 2011
Local efforts to restrict hydraulic fracturing have resulted in at least two legal challenges to date and these cases are being watched closely by the natural gas industry, upstate communities and environmental advocates....Middlefield Township, which is located in Otsego County and includes part of Cooperstown, enacted a zoning law in June that bans hydraulic fracturing, along with other types of high impact industrial activity.
WAMC Northeast Public Radio: NY Communities Challenge Gas Drilling
by  Dave LucasWAMC Northeast Public Radio
December 16th, 2011
ALBANY, NY (WAMC) - The controversial practice of Hydraulic Fracturing has opened a Pandora's Box of legal questions and challenges - the first lawsuit in upstate New York challenging the right of local governments to ban gas drilling (and ultimately, hydrofracking) had its first hearing this week in state court - Hudson Valley Bureau Chief Dave Lucas reports.
WBNG News: Tusten Town Board Bans Hydrofracking
WBNG News
December 4th, 2011
Town of Tusten, NY (WBNG Binghamton) Another town board in our area has voted to ban hydrofracking. In Sullivan County, the Tusten town board voted to prohibit high-impact industry, and that includes high-volume horizontal drilling in the Marcellus Shale....Dryden and Middlefield recently banned hydrofracking, though both are involved in lawsuits.
PressConnect.com: Dryden defends gas ban in State Supreme Court
PressConnects.com
November 4th, 2011
THACA -- Facing a lawsuit from an out-of-state gas-drilling company, the Town of Dryden defended its reassertion of a prohibition against gas drilling within its borders Friday morning in State Supreme Court in Tompkins County. In front of a full courtroom, the town argued that state law forbidding municipalities from regulating the gas industry does not trump its home rule law or land use authority.
The Cornell Daily Sun: As Ithaca Votes on Fracking, Dryden Defends Its Ban
by Justin RouillierThe Cornell Daily Sun
November 2nd, 2011
With the City of Ithaca set to vote on a proposed hydraulic fracturing ban Wednesday, the Town of Dryden is preparing to defend its own ban on natural gas drilling before the Tompkins County Supreme Court on Friday.
Times Union: Jennings vetoes city ban on gas drilling
by Jordan Carleo-EvangelistTimes Union
October 27th, 2011
Mayor Jerry Jennings on Thursday vetoed a citywide ban on gas drilling aimed at the controversial practice known as hydrofracking, Jennings' fourth veto in 12 months after 17 years without one. In a two-page veto message, Jennings cited the fact that the state Department of Environmental Conservation is still taking public comment on its proposed regulations for hydrofracking, making any attempt to ban it premature.
The Ithacan: Firm sues Dryden for ban on fracking
by Brian RankThe Ithacan
October 27th, 2011
The town of Dryden will defend its ban on natural gas drilling in the New York Supreme Court of Tompkins County next week, marking one of the first times a ban will be challenged. The outcome could set a legal precedent for the rest of the state. Anschutz Exploration Corporation is suing the town, which is about 13 miles east of Ithaca, citing the ban as illegal under state law. The company contends that state law supersedes local ordinances on natural gas drilling and towns that do not have the authority to regulate drilling.
Your News Now: Common Council approves hydrofracking ban
by Web StaffYour News Now
October 24th, 2011
It could be challenged in the courts, but the Syracuse Common Council has imposed a new ban on so-called hydrofracking in the City of Syracuse or on any land it controls. YNN's Bill Carey says the move comes as the industry argues that the drilling could bring good news on economic activity and jobs.
Politics on the Hudson: Syracuse latest city to ban hydrofracking
by Jon CampbellPolitics on the Hudson
October 24th, 2011
The city of Syracuse became the latest municipality to ban a controversial technique used with natural gas drilling, following Albany, Buffalo and a dozen or so towns that have moved to restrict or prohibit hydraulic fracturing within its limits.
Catskills Citizens for Safe Energy: Municipal Zoning Bans on Natural Gas Drilling and Related Lawsuits
Catskill Citizen
October 21st, 2011
Prepared for the Association of the State of New York, an outline of New York State legal cases brought against exclusionary zoning, with overviews of arguments on both sides of the cases.
The New York Times: Rush to Drill for Natural Gas Creates Conflicts With Mortgages
by Ian UrbinaThe New York Times
October 20th, 2011
As natural gas drilling has spread across the country, energy industry representatives have sat down at kitchen tables in states like Texas, Pennsylvania and New York to offer homeowners leases that give companies the right to drill on their land....But bankers and real estate executives, especially in New York, are starting to pay closer attention to the fine print and are raising provocative questions, such as: What happens if they lend money for a piece of land that ends up storing the equivalent of an Olympic-size swimming pool filled with toxic wastewater from drilling?
Times-Union: Council OKs ban on gas drilling
by Jordan Carleo-EvangelistTimes Union
October 18th, 2011
City lawmakers brushed aside fears of costly lawsuits from the oil and gas industry Monday night and narrowly approved a ban on gas drilling inside city limits, a move aimed squarely at the controversial drilling technique known as hydrofracking.
The New York Times: Signing Leases for Drilling, and Now Having Regrets
by Mireya NavarroThe New York Times
September 22nd, 2011
Four years ago a man and a woman knocked on Katharine D. Dewart’s door, offering easy money for the use of her land. Handing her a brochure that included serene before-and-after pictures, they explained that a natural gas company was seeking to drill somewhere on her 35 acres of wildflower fields surrounded by hemlock woods in this Tompkins County town near Ithaca. Ms. Dewart, 68, served lemonade and signed, accepting $1,909 upfront and royalty payments of 12.5 percent of any sales of gas extracted from her property. “I assumed it’d be noisy for a couple of months, and I’d have a little extra cash and wouldn’t that be great,” Ms. Dewart, a writer, said.
Reuters: New York fracking lawsuit could set drilling precedent
by Dan WiessnerReuters
September 19th, 2011
A lawsuit challenging a small town's ban on natural-gas drilling could have implications throughout New York state, where officials are poised to approve a controversial drilling method known as fracking. Privately held Anschutz Exploration Corp filed suit on Friday against Dryden, a rural suburb of Ithaca with about 13,000 residents that last month amended its zoning laws to bar all gas drilling within its unincorporated borders.
Bloomburg Businessweek: Natural gas firm sues NY town over drilling ban
by Associated PressBloomburg Businessweek
September 16th, 2011
A Denver-based natural-gas company has sued the town of Dryden in central New York in an effort to strike down a recent zoning law prohibiting gas drilling there. Thomas West, an Albany attorney for Anschutz Exploration, says the lawsuit was filed Friday in state court in Ithaca.