Timeline for New York Drilling Ban Court Case
Tom West, an attorney handling a combined appeal of two New York cases where local judges upheld drilling bans passed by local townships, laid out a timeline for when the combined case will be heard and decided at an Albany conference yesterday. The two original cases are from Dryden, in Tompkins County, and Middlefield, in Otsego County.
Albany attorney Tom West said he’s handling a combined appeal of the cases to the mid-level Appellate Division of state Supreme Court. The case will likely be heard in the fall and a decision issued around November, he said.
Linda Shaw, a Rochester lawyer representing the town of Dryden, said she’s prepared to take the case to the Court of Appeals, the state’s highest court, if necessary.
The lower court rulings were seen as victories for local "home rule" and a blow to the industry and lease-holding landowners.
"If these two rulings stand it’s the kiss of death for gas drilling in New York," West said Thursday. "You could spend $100 million for lease rights, only to be at the mercy of a 3-2 town board vote."
West argued that state environmental law clearly states that local zoning is trumped by state regulations when it comes to oil and gas drilling.
Shaw said the courts agreed that while state law doesn’t allow localities to regulate drilling, that doesn’t mean they can’t adopt zoning laws to prevent drilling.*
Attorneys MDN has spoken with (including Rob Wedlake, see this MDN story), say that a ban or prohibition is not something separate from regulation but is the ultimate form of regulation, contrary to what Ms. Shaw advocates.
*Binghamton (NY) Press & Sun-Bulletin/AP (Apr 20, 2012) – DEC chief: No decision imminent on fracking
The Tom West traveling frack show . . . . “home rule” applies in every oil and gas state –
The new Pa, law is already being challenged
Fortunately for the people of New York State, our courts have repeatedly defended the power of local home rule against the powers of big state government in the question of surface mining. The reality of multi-pad horizontal drilling and high-volume hydraulic fracing (and possibly refracing) create an industrial site that can be active on and off for a decade or more, much like surface mining of sand and gravel.
Last I checked, the confirmation of the powers of towns to zone sand and gravel pits has not eliminated them from the state. Simiarly zoning of drilling will restrict it but not totally ban it from New York. More likely they won’t be drilling shales in our state because the price of dry gas is too low to turn a profit now and for the forseeable future.
Obviously two judges have strongly disagreed with Mr. West that zoning is the same as regulation under state law.
Mr. Wedlake represents the Vestal Gas Coalition and Mr. West represents Anschutz (among many others). Therefore both statements are to advance the interests of their clients and not to present an unbiased evaluation of the strengths of the arguments.