Government Law

Towns and cities can ban fracking in their borders, New York high court rules

New York’s highest court has upheld the “home rule” powers of even the smallest localities to ban fracking in order to preserve their rural and small-town character, Bloomberg News reports.

Fracking, or hydraulic fracturing, is the practice by which oil and gas are extracted from rock by injecting high-pressure mixtures of water, chemicals and sand or gravel into the ground.

The New York Court of Appeals’ decision (PDF) is similar to one in Pennsylvania last year, and is seen as being largely symbolic in New York, which in 2008 launched a statewide moratorium on fracking. The moratorium is still in effect, while the state studies the environmental effects. Still, when gas and oil companies began buying up property in areas of New York that are part of the Marcellus Shale region covering several states, some localities banned fracking.

By challenging the practice through their home-rule powers, the localities engaged in a “reasonable exercise” of zoning authority under the state’s Municipal Home Rule Law, Judge Victoria Graffeo wrote for the Court of Appeals majority. Graffeo added that the towns could do so if they determined that fracking “would permanently alter and adversely affect the deliberately cultivated small-town character of their communities.”

In dissent, Judge Eugene Pigott, joined by Judge Robert Smith, wrote that the towns’ zoning ordinances “do more than just regulate land use, they regulate oil, gas and solution mining industries under the pretext of zoning.”

More than 75 New York towns have banned fracking; the court considered challenges to those by the rural town of Dryden and the agricultural and tourist town Middlefield, which includes part of the village of Cooperstown, best known for having the National Baseball Hall of Fame.

“This will empower more communities nationwide,” Katherine Nadeau, policy director for Environmental Advocates of New York, told Bloomberg News.

And it could drive away the fracking industry, which has been hoping that Gov. Andrew Cuomo will lift the fracking ban. That is not likely to happen before next April, Bloomberg News reports.

“It’s going to have a real chilling effect on the investment in New York,” Thomas West, a lawyer for Norse Energy, which brought the case against Dryden, told Bloomberg.

Norse ceased operations in the U.S. last year and entered Chapter 7 bankruptcy. The case against Middlefield was brought by the Cooperstown Holstein Corporation.

The home-rule strategy to prohibit fracking in New York was devised by a former big-firm real estate lawyer-turned environmental activist, Helen Slottje, and her husband David Slottje. Earlier this year, Helen won the prestigious Goldman Environmental Prize for her work, which includes a $175,000 grant.

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