MDN recently reported about two lawsuits filed (so far) in New York State that will set precedent in the state on the issue of whether or not local municipalities (i.e. townships) can ban gas drilling altogether within their borders.
One of those lawsuits, filed against the Town of Middlefield in Otsego County, was filed by landowner Jennifer Huntington (see the MDN story here). Her lawsuit says the town’s ban violates state law which stipulates only the state can regulate oil and gas drilling. The key word there is “regulate.”
The town’s attorney has responded. This is his argument:
Middlefield town attorney David Clinton said the town is not regulating gas drilling, it is prohibiting it. “It’s not regulated. It’s not permitted in the town. There is a substantial difference,” he said.*
So Clinton says that prohibition is not regulation—the two are not one and the same—and since state law does not address prohibition, the town is within it’s rights to do so.
MDN’s editor is not an attorney, but it seems to MDN that Clinton’s argument is a distinction without a difference. That is, prohibiting a use is just another form of regulating a use—they are one and the same. And it is that concept, that argument about what regulation is and is not, on which this case will be decided.
To say that because you’re not telling someone how something must be done (i.e. regulating how it’s done), does not mean if you tell them “just don’t do it at all” it’s somehow a different thing. Telling them “don’t do it” is just another form of telling them “how to do it.” So MDN believes landowner Huntington has the stronger argument going in to this case.
Only time will tell. And one thing is a certainty at the conclusion of this case: An appeal by whomever loses.
*The Cooperstown Crier (Sep 26, 2011) – Our Opinion: Lawsuit is no surprise