By Dan Hust
NEW YORK STATE In two separate decisions last week, two upstate New York judges ruled that local municipalities are allowed to prohibit natural gas drilling within their boundaries.
The rulings are likely to be appealed, but they mark a new chapter in the ongoing battle over drilling.
Significantly, both judges independently came to the conclusion that two prior cases involving the state’s Mined Land Reclamation Law (MLRL) applied to these two cases, which involved the state’s Oil, Gas and Solution Mining Law (OGSML).
The two prior cases had established that townships, villages and counties in New York State retained the right to dictate land uses under the zoning authority granted them by the state pertaining to mining.
NYS Supreme Court judges Philip Rumsey and Donald Cerio Jr. said that authority logically applies as well to gas drilling, even though much of the activity is underground.
Thus in a case involving the Anschutz Exploration Corporation versus the Town of Dryden (near Ithaca) and another involving a pro-drilling property owner versus the Town of Middlefield (near Cooperstown), the judges agreed that the respective townships’ zoning bans on gas drilling were legitimate.
“It’s a huge victory and a huge morale-booster,” said Catskill Mountainkeeper Executive Director Ramsay Adams yesterday. “... It established the fact that towns do have the right [to zone out gas drilling activities].”
Though towns may still rack up legal fees in defending such bans in court, Adams felt the rulings reduce the ability of gas companies to recoup alleged losses suffered by such bans.
“The ominous threat of the industry bankrupting towns is not there in the way it was before,” he said.
Mountainkeeper played a supporting role in both cases, though Adams gave primary credit to lawyers David and Helen Slottje, plus Earthjustice’s Deborah Goldberg.
“They really were the leaders of this effort,” he stated. “They stuck to their guns ... and they won!”
As a result, Adams expects many municipalities to adopt similar bans statewide, possibly before Department of Environmental Conservation (DEC) officials finalize new rules on drilling involving fracking.
Locally, Tusten already has banned drilling, with Highland, Lumberland and Bethel expected to follow in the months ahead.
“We believe this is going to become a major part of the effort to protect communities from fracking,” Adams explained of the twin court decisions. “... I think there is going to be a lot of movement in towns now.”
He said Mountainkeeper will be there to help and will continue advocating for a total statewide ban.
“Fracking is not safe,” he charged. “... And we believe that most people in most towns don’t want it.”
In the meantime, Adams isn’t sure either case will be appealed, saying Mountainkeeper has heard “mixed signals” from the gas industry and supporters.
But Long Eddy resident Noel van Swol, who heads a group of landowners interested in leasing their property to drillers, thinks the cases will be appealed and reversed.
“The two lower-court decisions are going to be immediately appealed,” he predicted.
“... Eventually that will be overturned on appeal,” he added, “because the DEC has traditionally had total control over oil and gas regulations in New York State.”
The desire of the state to have uniform statewide regulations, plus the prospect of war in the Middle East driving up energy costs will prompt politicians to ensure an open and level playing field for drilling in New York, van Swol believes.
He discounts reports that the gas underneath Sullivan County may not be worth drilling for, arguing such information relies on outdated data.
Van Swol said he’s heard the test wells just across the Delaware River in Pennsylvania have yielded “exceptional” results.
“The gas formations you find on the PA side extend over on our side of the river,” he pointed out, adding that Chesapeake Appalachia, a drilling company, is planning to site multiple wells in Delaware County’s Rock Valley, just over the Sullivan County line, at a cost of $5 million apiece.
“They know exactly what is here, and so do the property owners,” he said.
Even if the judges’ decisions of last week are upheld, van Swol expects that will not halt local drilling.
“They will have no effect on our region,” he stated. “The towns of Fremont, Delaware, Cochecton and Callicoon in Sullivan County, as well as the towns of Hancock and Deposit in Delaware County and Sanford in Broome County, have town boards which are solidly pro-gas drilling.
“There is no chance that anti-natural gas drilling zoning ordinances will be approved in any of those towns.”