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Municipal Fracking Ban Appeals Heard by Appellate Division Thursday

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Middlefield Neighbors, a grassroots anti-fracking group from the small town of Middlefield, NY demonstrate their opposition to fracking. Photo via Flickr 350.org
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Oral argument in the Dryden and Middlefield municipal fracking ban cases was heard yesterday, March 21, 2013, at the Appellate Division, Third Judicial Department, in Albany. The forthcoming decisions in these cases will have tremendous significance since the court will rule on the question of whether local municipalities can exercise their zoning authority to determine whether or where gas companies can frack within their borders.

Middlefield Neighbors, a grassroots anti-fracking group from the small town of Middlefield, NY demonstrate their opposition to fracking. Photo via Flickr 350.org


In early 2012, two state supreme courts upheld local zoning laws that banned fracking within town borders against challenges brought by gas company Anschutz Exploration Corporation (Dryden) and landowner Cooperstown Holstein Corporation (Middlefield). The precise legal question at issue in those cases was whether language in the state law that governs gas drilling (the Oil, Gas, and Solution Mining Law) barring municipalities from passing laws “relating to the regulation of oil, gas, and solution mining industries” completely prevented or “preempted” traditional local zoning authority. Both courts decided in favor of the town respondents that it did not. The petitioners appealed those decisions to the Third Department.

Just days ago in a separate case, a third New York town that had been sued over its ban on natural gas drilling, the Town of Avon, prevailed when the Supreme Court of Livingston County ruled in Avon’s favor, upholding its right to preclude hydrofracking natural gas drilling within its borders.

In the wake of these favorable decisions, powerful arguments were made to the Third Department yesterday by Earthjustice Senior Attorney Deborah Goldberg and Whiteman Osterman & Hanna LLP Partner John Henry on behalf of the towns, as well as by Knauf Shaw LLP Partner Alan Knauf on behalf of Dryden Resources Awareness Coalition. “Our argument is that the towns of Dryden and Middlefield are not trying to regulate the industry; they recognize that regulating the industry is a matter for the state,” said Goldberg. “But the town of Dryden is exercising its constitutionally protected local power to regulate land use through zoning.”

Court briefs filed by the gas company and landowner appellants can be found here. The municipalities’ respondent briefs can be found here and here. Riverkeeper and seven other environmental non-profits, represented by NRDC, filed amicus briefs in support of the fracking bans and the right of municipalities everywhere to use local control to determine if and where fracking occurs within their communities. A decision is expected in 6 to 8 weeks. We are hopeful that the Third Department Appellate Division will affirm the rights of municipalities to enact zoning regulations that protect the health, economy and environment of their citizens.

For more information on the Dryden and Middlefield municipal fracking ban cases, see Riverkeeper’s UPDATE on the subject.

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