53 NY Towns Ask to Join Fracking Ban Court Case

Mother May IWhile New York Gov. Andrew Cuomo dithers about whether or not to allow fracking in the state, two court cases that will have a profound effect on where fracking can happen (should he finally make up his mind) continue to work their way through the court system. Those cases address of the issue of whether or not local municipalities should have the right to completely ban fracking within their borders—sometimes referred to as “home rule.”

Not long ago MDN updated you on the status of those cases with word that oral arguments are likely to take place in February with a decision by late spring (see this MDN story). A new development in those cases: 53 municipalities have filed a request with the court to join the cases on the side of pro-ban/anti-fracking:

More than 50 towns and cities from across upstate New York, including Rush and Mendon, have asked a state appeals court for permission to weigh in on whether municipalities can ban natural-gas drilling within their borders.

According to court filings made this week, the 53 municipalities — along with the state Association of Towns, Conference of Mayors and the New York Planning Foundation — are hoping to submit a legal argument in favor of “home rule.”

A Norwegian natural-gas company and a Cooperstown-area farmer have appealed separate state Supreme Court decisions that found New York law does not prevent municipalities from banning or using zoning laws to prevent hydraulic fracturing for natural gas.

The lawsuits, which seek to overturn municipal fracking bans, would “significantly undermine the power of municipalities of this State” if they are successful, according to the most recent filing from the cities and towns.

“It’s really a question of home rule,” said John Henry, an attorney for Albany-based firm Whiteman Osterman & Hanna, which is representing the municipalities. “They want to make sure that municipalities have a say in regulating the activities within their borders.”

Among the participating towns are many that have passed or amended zoning laws or moratoriums designed to prevent gas drilling locally, including Rush and Mendon and the towns of Ulysses, Lansing, Caroline and Ithaca in Tompkins County. Others participating include Saugerties, Ulster County, and the city of Ithaca.

The state Appellate Division has to approve the municipalities’ request before they can submit a legal brief for consideration by the court.*

*Rochester (NY) Democrat and Chronicle (Oct 30, 2012) – N.Y. towns, cities look to get involved in hydrofracking home rule case