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Court: Towns have right to trump state in fracking law


Published: Fri, May 3, 2013 @ 12:00 a.m.

Court: Towns have right to trump state in fracking law

Associated Press

ALBANY, N.Y.

New York municipalities can use local zoning laws to ban the practice of hydraulic fracturing to drill for natural gas, a mid-level state appeals court said Thursday.

State mining and drilling law doesn’t trump the authority of local governments to control land use, the four-judge appellate division panel ruled unanimously.

Norse Energy Corp.’s challenge to a drilling ban in the upstate town of Dryden has been closely watched by an industry hoping to drill in New York’s piece of the Marcellus Shale formation and opponents of the technology they want to use, also known as fracking. Environmentalists fear the drilling, which frees gas from deep rock deposits by injecting wells with chemical-laced water at high pressure, could threaten water supplies and public health.

More than 50 New York municipalities have banned gas drilling in the past few years, and more than 100 have enacted moratoriums on drilling activities.

The court decision involved interpretation of state law that says regulation of the oil and gas industry rests solely with the state Department of Environmental Conservation.

Norse lawyer Thomas West had argued that the law is intended to prevent waste of oil and gas and protect the mineral rights of multiple landowners.

“When a municipality says you can’t drill here, you have the ultimate waste of the resource and destruction of the correlative rights of the landowners,” he said during oral arguments in March.

But the court ruled the law doesn’t pre-empt a municipality’s power to enact zoning laws that would ban gas drilling.

The court said it disagreed with Norse’s assertion that New York’s policy was to maximize recovery of oil and gas at the expense of local decisions over land use.

West said Thursday that he will ask the state’s top court, the Court of Appeals, for permission to appeal the decision. He said the appellate panel took too narrow a view of the law and relied on previous decisions in cases involving mining sand and gravel rather than drilling for gas and oil.

The town of Dryden said it was pleased with the ruling.

“The people who live here and know the town best should be the ones deciding how our land is used, not some executive in a corporate office park thousands of miles away,” Dryden Supervisor Mary Ann Sumner said in a statement.

In a separate ruling based on the Dryden decision, the court also upheld a ban in Middlefield in Otsego County, where a dairy farmer said the town’s action prevents her from making money from gas wells that had been planned for her land. A trial-level judge has also upheld a ban in the Livingston County town of Avon.

Scott Kurkoski, who represented dairy farmer Jennifer Huntington in her challenge to Middlefield’s ban, said Thursday he’s also preparing an application to appeal.

“The interests of mining law and oil and gas law just aren’t the same,” Kurkoski said.

New York has not decided whether it will lift a 5-year-old moratorium and permit fracking. State health commissioner Nirav Shah said Wednesday there is no timetable for completing a public health analysis of the technology for Gov. Andrew Cuomo, who will decide whether the state will allow it.


Comments

1cambridge(3010 comments)posted 1 year, 4 months ago

ohoh13....I think it's your turn to read something very slowly.

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2UticaShale(854 comments)posted 1 year, 4 months ago

New york? The whole liberal state has banned drilling, now they are pleading for investments as they sink into third world status like Youngstown.

The blacks in Youngstown are rallying to defeat the liberal bent that wished to strip them of the mineral rights. NO TO THE CHARTER , NO TO TAKING OUR MINERAL RIGHTS!

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3oh13voter(1205 comments)posted 1 year, 4 months ago

Supporters of the charter amendment will see this as proof that the charter amendment is enforceable. It proves nothing.

The law in NY is written completely different, and if you read the article s l o w l y you will notice that they used a mining regulation as the basis for their ban. We have no such regulation in OH. In NY mining is regulated under a separate department than oil an dgas development. The whole situation is different than OH.

The charter amendment is not enforceable under Ohio law.

VOTE MO MAY 7TH !

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4cambridge(3010 comments)posted 1 year, 4 months ago

76Ytown provided this link on another thread of the communities that have banned fracking or are in the process. The list is staggering and there are more to come.

http://www.foodandwaterwatch.org/wate...

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5oh13voter(1205 comments)posted 1 year, 4 months ago

Just proves stupid is not limited to Mahoning County, and you can't fix stupid.

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6oh13voter(1205 comments)posted 1 year, 4 months ago

Congratulations Youngstown !
Better day will soon be here.

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7Metz10987(145 comments)posted 1 year, 4 months ago

Ohio can do the same thing you fools. Just rewrite the state laws to allow local communities to have a say and tell the industry to mind their own dang business and shut up. Get Kasich out of there too, the guy is getting rich from all this. No charter amendment would be needed and it does not ban fracking only allows those it affects to have the legal right to say if they want it in their town or not. And ignore people like UticaShale and ohvoter13, they are trying to fool you and it is working to a point. The industry will fight this to the death because they know many communities do not want it nor citizens and there profits will go down, simple as that. Again don't fall into their trap and use your own judgement/.

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8oh13voter(1205 comments)posted 1 year, 4 months ago

Metz,

I don't expect people to take my word for anything. I expect that my comments will spark questions in the mind of the reader.
One tthing I have suggested is that everyone read the language of the amendment. Then decide if I am correct.
I continue to suggest to you that you reaad the amendment, it's obvious that you haven't. The amendment not only banned fracing it banned oil and gas development. It also banned any business associated with opil and gas development.
It took away the rights of the citizens of the City to make their own decisions.
Read it Please!

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