Another Look at the Dryden Fracking Ban Court Decision

Last week, New York State Supreme Court Judge Phillip Rumsey ruled that the Town of Dryden has the right to ban gas drilling within its municipal borders (see this MDN story). As MDN pointed out, this is “round one” in the fight for landowner property rights. The Supreme Court in New York is only one step above county court. The Court of Appeals is the highest court in New York State.

Others have weighed in on the Dryden decision, including the Dryden Safe Energy Coalition (DSEC), a pro- but very much safe-drilling group headquartered in Dryden. From the DSEC press release following the decision:

The Dryden Safe Energy Coalition has read with interest the decision of State Supreme Court Justice Rumsey in the Anschutz suit against the Town of Dryden.

Henry Kramer, attorney and co-founder of DSEC noted, “We are a long way from a Court of Appeals decision that would set statewide precedent.  Anschutz has some choices to make.  Their options include an appeal to the Appellate Division.  Or they could decide not to appeal the zoning issue and instead proceed to a suit for an entire taking of their property interests in the Town of Dryden, valued at five million dollars.  So, while the Town may win the zoning battle, it may suffer ultimate defeat if the courts require the Town’s taxpayers to pay for the property rights the Town took.”

“Further, the court found a technical reason to throw out some legislative history of the Environmental Conservation Law, whose preemption provision was written specifically to stop local regulation of vertical drilling.  In its analysis that the mining and oil and gas laws are substantially the same the court overlooked a guiding principle of statutory interpretation, that the Legislature’s use of words is informed and that every word and difference is intended to have meaning.  Reasoning by analogy from differently worded statutes is dangerous.  They are different, not by accident, but for a reason.”

“We caution against drawing too many conclusions from this decision.  We are certain that activist groups will seize on this decision as though it was the final word.  We anticipated, and continue to anticipate, that is merely the first round in a long and drawn out legal battle.  Undoubtedly it will spawn more bans and moratoria as those opposed to energy development seek to prevent any production of fossil fuels in New York State and look to this decision for support.”

DSEC co-founder Tom Reynolds said, “today’s decision means local pocket majorities will be able to create a patchwork quilt of regulation differing about every ten miles and changeable by election every two years instead of providing New York with a uniform standard designed and implemented by an expert agency.  If sustained, the decision will probably show that New York is not serious about being open for business and lacks real concern for jobs, the economy, and high paying work opportunities for the 22% below the poverty line in Tompkins County.  The message has implications for any business considering coming to New York.”

DSEC co-founder Tracy Marisa said, “the decision allows towns to override any personal landowner choices about what to do with their land.  The Town’s ban takes away that freedom and the Town makes the decision for all.  Thus the decision is not only about hydraulic fracturing but also represents a loss of personal freedom of choice and vests ever more power in government.”*

In addition, Tom Shepstone, Northeast Marcellus field director for Energy in Depth, has written an excellent critique of the decision: Will the Dryden Turkey Fly? I highly recommend you read it.

If Anschutz decides to walk away from Dryden, the five board members who voted to enact this ban will have placed all of the people they represent on the hook to pay Anschutz more than $5 million—at a minimum. Dryden residents will get an early Christmas present the next time they open their property tax notice. One has to wonder who the real losers are in this case.

*Dryden Safe Energy Coalition (Feb 22, 2012) – Dryden Landowners Appalled by Decision: DSEC Press Release