NY Local Governments Not Allowed to Ban Marcellus Drilling by State Law
Local governments in New York State that pass zoning ordinances to restrict or prohibit hydraulic fracturing and drilling for natural gas in the Marcellus and Utica Shales may find their actions overturned in short order.
Attempts by government officials to zone the natural gas industry, beyond creating road use ordinances and determining real property taxes, is superseded by New York State Oil, Gas, and Solution Mining Law, says a former director of mineral resources for the New York State Department of Environmental Conservation.
Gregory H. Sovas, president of XRM, LLC, and the primary author of amendments that were made to the law, was on hand in Norwich earlier this month to clarify that point for government officials attending a Chenango, Otsego, Delaware, Madison Regional Natural Gas Collaborative meeting.
Members of the Chenango County Natural Gas Advisory reviewed Sovas’ presentation this week and discussed moves in Otsego and Tompkins counties’ towns to ban the controversial hydraulic fracturing means of extraction. Most have forged ahead to regulate on their own while waiting more than three years for the New York State Department of Environmental Conservation to complete its regulations, which it began to do just yesterday.*
The recently enacted drilling ban in the Town of Barrington (in the Finger Lakes region), along with the Towns of Milo and Jerusalem (see MDN story here) will likely not stand.
*Norwich The Evening Sun (Jul 1, 2011) – Evolving zoning laws to ban drilling subject to supercedure by state law
Just because Sovas, who is pro-drilling, says so, doesn’t make it so. Many attorneys who have pored over legal precedents in NY confidently prove that, time and again, towns have zoned out unwanted activities such as gravel mining, landfills, and casinos. In fact, the State vested this power in the towns long ago, and the State encourages the creation of comprehensive plans by all NY towns. The State then approves them to make them official. Our town’s Comp Plan banned heavy industry years. See http://www.cedclaw.org .
sovas spews the most biased bs ever heard… and for MDN to repeat it, shows the disinformation propagandizing you are engaged in. DEC made changes to include clause that permit seekers need to be in compliance w local zoning and this is how it is in most the rest of our great country. its called democracy. if you would like mulitnational corporations calling the shots in your town and not the residents than you are a fascist by definition.
In general, I am in favor of more representation and democracy, not less. And I have personally heard this very same thing from Michael Joy, an attorney and law professor in NY State’s only oil & gas program (SUNY Buffalo). He’ll tell you the same identical thing. And as the article points out, Sovas actually crafted the language of the law–who better to understand it than he? Zoning, by definition, denies private property owners the right to do with their land what they see fit to do. Of course exercising that right must be balanced against the good of the community (no one wants a pig farm inside the city limits, etc.). It is a balancing act–but seems to me the real fascists in this scenario as those that seek to deny private property owners the right to benefit from their own land.
The headline is misleading. The law in this area is not clear because New York courts have not dealt directly with this issue, There is good reason and sound legal analysis to indicate that Towns can use zoning law to prohibit “fracking” in within their boundaries.
Gregory H. Sovas’ opinion means nothing. This is a question that the NY courts will decide. Clearly, as the law states, municipalities may not regulate O&G activities. However, NY courts have decided in several cases that zoning laws are regulations of land use, not of a particular industry that may be zoned out. The effect of zoning law on the industry is incidental to the regulation of land use, and not a direct regulation of the industry. If the law is to be consistent with these past decisions, one would predict that the bans will stand.
Sovas’ position is NOT shared by dozens of expert NY attorneys.
Mr. Willis: Your argument is self-contradictory. If pig farms can be excluded, why not carcinogenic, radioactive pollutants from drilling? And why not the exclude the thousands of fracking truck trips that destroy Main St? And what happened to MAJORITY rule? In our town, 96% favor a ban on fracking. Only 4% stood to gain, from leases. Why should the 4% minority RULE? They would cause adversity for the rest of us: decreased property values, air pollution, destruction of our tourism-based economy, methane in our wells, toxic brine in our rivers. You don’t support democracy. You’re an anarchist. You think a small minority should get rich at the expense of the majority. Completely unfair!
what Joy and sovas are not getting, or more likely intentionaslly obfuscating, is the distinction between regulating the gas industry and towns whose comprehensive/master plans make all high impact industrialiasm an incompatible activity with their intentions to retain their rural character and support agriculture. It is an individual trying to benefit from their land interrupting their neighbors quiet enjoyment of their land and further degrading the larger community’s air , water and soil quality that such plans and zoning remedy.
If you want to create an industrial toxic waste park you are more than welcome to find a town where such activity is permitted but to attempt to impose that where it is not allowed is beyond ridiculous to argue as one’s right.
NY does have as of yet, to determine what they are defining as home rule… That’s the one issue I will take with the article. However to mgold and ActionsCount, your seething over something isn’t going to make the difference. Drilling WILL commence in NY – get over it and start dealing with it in a mature, informed, knowledgeable manner. 96% of people are against it? Again, get real and quit pulling figures out of thin air. Just because you wish it were true doesn’t make it so. If this were the case, there would be NO NY legislator who would have allowed it to get this far. The drilling opposition would like people to believe the pro-drillers are in the minority, when in fact, it is coming to light to those who have remained silent for too many months that they, those in favor of responsible drilling, are in fact the majority!
NEPAgal:
I’m not “seething;” you are. I didn’t say 96% of people are against it. I said 96% IN OUR TOWN. I should know. We did a door-to-door survey. But as far as the rest of the state’s opinion, it’s closer to 88% who have grave concerns. That because “responsible drilling” doesn’t exist. None of the treatment plants can filter out NORMs (Naturally Occurring Radioactive stuff); diesel dust causes lung cancer; plenty of accidents in PA have polluted rivers, creeks and private wells.
Here is the citation so you can read up on the FACTS of how NYers feel:
“Among New York state residents who already are aware of “fracking,”
nearly nine out of 10 (88 percent) are concerned about the drilling
technique’s possible threat to clean drinking water for New York City.” from //www.civilsocietyinstitute.org/media/b122110release.cfm