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State Court of Appeals Confirms Municipal Right to Ban Fracking

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frack_day_of_Action_crJessicaRiehl-homerule-500It would be hard to overestimate the importance of the victory won today by municipalities and grassroots advocates across New York State. In a landmark decision, the State’s highest Court ruled that local municipal governments may decide if and where gas companies can perform the highly industrial practice known as hydraulic fracturing (“fracking”) within town borders. The decision upholds the rights of communities to protect the health, safety, and general welfare of their people against the known hazards of fracking—rights the Court called “the very essence of municipal government.”

The state Court of Appeals ruled 5-2 in favor of the towns of Dryden, Tompkins County, and Middlefield, Otsego County, which had enacted fracking bans in 2011. Gas company Anschutz Exploration Corporation and landowner Cooperstown Holstein Corporation challenged the respective bans, claiming that the state Oil, Gas, and Solution Mining Law (OGSML), which regulates natural gas development in New York, preempted municipal zoning regulations related to fracking. The Court disagreed, ruling that the OGSML entrusts the state Department of Environmental Conservation with the duty to regulate “the safety, technical and operational aspects of oil and gas activities,” but “does not preempt the home rule authority vested in municipalities to regulate land use.” In other words, although the state can regulate how the gas industry operates, municipalities can decide where it operates.

Without municipal home rule authority to regulate land use, corporations would have unfettered ability to frack within a few feet from homes, schools, hospitals, and religious institutions and local government would be powerless to intervene. This ruling confirms once and for all that communities do have the authority to determine uses of their land and take measures to protect their residents and environment. 170 municipalities enacted fracking bans or moratoria to “preserve the rural and small town character” their residents have invested in. This decision will no doubt give other New York municipalities the courage to follow suit.

Riverkeeper, represented by the Natural Resources Defense Council, filed amicus briefs [link to brief] in support of the town bans.

Although this decision gives municipalities the right to prohibit fracking, the environmental, human health and economic impacts of fracking operations do not stop at town borders, and many communities are still in danger of those impacts. To date the state Department of Environmental Conservation has not completed an adequate analysis of the potential harms of fracking. Riverkeeper and others will continue to press for a robust review of those potentially adverse impacts before the State makes any decision on the future of fracking.

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

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