NY Judge Throws Out Binghamton Fracking Moratorium

stop pressThe City Council for Binghamton, NY passed a de facto drilling moratorium at the end of December of 2011, just before the all-Democrat city council was about to be reconstituted with a few new Republican members (see this MDN story). At the time, Mayor Matthew Ryan and City Council were warned of possible litigation.

The law as passed was not (according to City Council and Ryan) an actual moratorium. Instead, they used the “police powers” of the city to enact a law instead of a zoning ordinance, believing it to be a clever legal maneuver insulating them from meeting the strict requirements for a true moratorium.

Yesterday New York Supreme Court Judge Ferris Lebous threw out the law as invalid, calling it what it really is: a moratorium. A copy of the judge’s ruling is embedded below. MDN will walk you through it…

The case revolves around whether or not the law as passed is in fact a moratorium. If it is, a moratorium has specific legal requirements in order to be valid—all of which don’t apply to Binghamton’s two-year ban. City Council and Mayor Ryan argued in court the law was not a moratorium, but Judge Lebous, in a master stroke, quoted the author of the law’s language—lawyer David Slottje (funded by the Park Foundation to run around New York doing this very thing)—to show it was intended to be a moratorium all along. In a damning passage in the ruling, Lebous quotes Slottje’s own words from a City Council work session where Slottje is describing the (at that point) proposed law:

It’s [the local law being proposed] a moratorium in the sense of having a finite period. It’s like a sunset clause. 24 months. It is not literally a moratorium because this is not literally a zoning ordinance. This is a police power ordinance. But it quacks like a duck and walks like a duck. So, you can absolutely think of it in terms of being a moratorium.*

Lebous quotes Slottje again, from a different Council work session:

This is for a two-year period, if you decide to pass this, there will be a de facto moratorium within the City on essentially gas drilling, both extraction activities, disposal of waste activities, and so on . . . It’s a temporary two-year law.*

We won’t bore you with all of the explanations of motions and counter-motions and who has standing to sue and who doesn’t. It’s all in the ruling below.

Here’s the important part. On page 11 of the ruling, Judge Lebous writes:

Whether or not Local Law 11-006 [the Binghamton law] is a moratorium is the crux of this case.*

Lebous then defines the legal criteria for having a valid moratorium. Lebous does not re-use Slottje’s “quack like a duck” language, but he almost does. One page 13 of the ruling he says:

In the matter before this Court, Respondents have failed to provide any evidentiary proof that would provide a justification, based upon the health and safety of the community, for the banning of gas exploration, storage and extraction. Instead of proof, Respondents have produced only conclusions.*

As for whether or not the “law” is really a wolf moratorium dressed up in law sheep’s clothing, Lebous says:

The City Council’s bare conclusion in its Findings of Fact that this law was enacted pursuant to the police power cannot change the true character of this law. The comments made at the Binghamton City Council worksessions clearly  show that even the drafters of the law believed it was a moratorium, as well as Corporation Council and some of the members of the council.*

quacks like a duckYes Mr. Slottje, it certainly does walk and quack like a duck, and thanks to a clear-headed judge, it’s now called what it really is, a moratorium duck.

The one slight quibble we might have with the judge’s ruling comes on page 11 where he talks about the issue of Pre-Emption and two court cases currently working their way through the appeals process in New York. In both of those cases local towns (not in Broome County) passed laws that outright ban shale gas drilling within their borders. Those cases are being appealed on the basis that state law supersedes local laws with regard to regulating oil and gas drilling in the state. Lebous agrees with the judges in both those cases in ruling the state law does not supersede. Lebous said he adopted the same criteria and commented that the Binghamton law was not superseded by state law (that is, the Binghamton law is a different kind of law and pre-emption is not an issue in this case).

Does this ruling mean temporary bans (i.e. moratoria) already passed in towns around the state will be declared invalid, whereas outright bans will not? We don’t know. Hopefully an MDN reader who practices law will weigh in with an opinion on that one. At a minimum, this decision may slow down the adoption of more temporary bans/moratoria.

All in all, Lebous’ ruling was a victory for landowners and for those who support the right of landowners to allow drilling on or under their property if they want to.

*New York State Supreme Court (Oct 2, 2012) – Jeffrey v City of Binghamton, Decision, Order & Judgment