Ithaca-area Township Set to Ban Fracking – Is it Legal?

Is it legal?The Town of Caroline in Tompkins County, New York is about to pass a one-year ban on hydraulic fracturing. The question is, is it legal to do so? Attorneys who understand New York State’s oil and gas law say no.

A proposed moratorium on gas drilling in the Town of Caroline is well on its way to becoming law, with only a public hearing left on March 1 before the town board plans to vote.

Barring any serious objections that have yet to be considered, the board could vote the one-year moratorium into law as early as March 13, according to Town Supervisor Don Barber.

"A one-year moratorium gives the town the space and time to work on a number of different issues," Barber said. Road preservation, industrial site plan review, and critical environmental and aquifer protection plans must all be considered, he said.

Even those in favor of gas drilling understand that the town has to evaluate the impact of gas drilling on vital town interests such as aquifers and infrastructure, Barber said. The bill "is not an attempt to regulate the industry," he said. "It doesn’t tell anyone what to do."(1)

Mr. Barber is 100 percent incorrect in his statement. To ban something is the ultimate form of regulation. Current New York State law specifically states that regulation of oil and gas drilling is reserved for the state, and municipalities are not allowed to regulate it. The fairy tale that anti-drillers try to spin is that to ban is not to regulate. Wrong. And two cases before the state Supreme Court will clarify just that issue. One of those is a case from the Town of Dryden, which borders Caroline.

All of the issues Mr. Barber claims the town needs to study before allowing gas drilling are already anticipated and highly regulated in the draft SGEIS drilling rules from the state Department of Environmental Conservation. Residents of Caroline need to see this for what it is: a politically motivated anti-drilling ban that sacrifices landowner rights on the altar of environmental activism. It also opens the township to an expensive lawsuit that taxpayers in Caroline will have to pay for.

Lest you think MDN’s view is just so much pro-drilling hot air, consider the opinion of Binghamton attorney Rob Wedlake, who addressed the Town of Vestal board (Broome County, NY) on just this topic last night:

Robert Wedlake, an attorney for Hinman, Howard & Kattell who represents the Vestal Gas Coalition, said local governments don’t have the ability to supersede state law — including a portion of state Environmental Conservation Law that prohibits municipalities from regulating oil and gas extraction.

The argument that a ban is not regulation, Wedlake said, is not valid.

"A prohibition is the ultimate regulation," he said. "Stopping the activity altogether is the ultimate in regulation."

A final decision on whether New York municipalities can prohibit drilling will likely hinge on the decisions handed down in two separate lawsuits — one filed by a landowner against the Town of Middlefield and the other by a gas company against the Town of Dryden.

Wedlake said it would be ill-advised to pass a moratorium before those two cases are decided.

Vestal would be open to potential lawsuits from landowners and gas companies, he said, if the town enacts a moratorium that the courts later decide is illegal.(2)

(1) Ithaca Journal (Feb 21, 2012) – Caroline public hearing last step before gas moratorium vote

(2) Ithaca Journal (Feb 21, 2012) – Vestal Town Board presentation argues against fracking ban