As New York awaits a decision from the state’s highest court on whether communities have the right to use local zoning laws to ban the use of land for oil and gas activities, several local governments in many states are regulating hydraulic fracturing. Experts from affected states recently briefed reporters on the growing trend of community control over fracking.
In advance of the pending decision from New York’s high court over a pair of zoning-based oil and gas development bans, a panel of experts from New York, Colorado, California, Pennsylvania, and Texas hosted a tele-press conference.
Panelist Deborah Goldberg, Managing Attorney, Earthjustice Northeast Office: "It's extremely important to note that part of the reason why we have so much local activity is because of problems at both the federal and state level in regulating the oil and gas industry. The federal level we largely have a complete abdication a range of loopholes and exemptions for oil and gas industry which leaves a legal vacuum. And at the state level, even where the states have moved in to try and fill the gap there is often inadequate regulation or poor enforcement. So, localities really are left to their own devices, and are often the frontline of defense for communities that are affected by the industrial operations."
Many local governments have set pro-active examples. In the Spring of 2012 in the Hudson Valley, Ulster County Executive Mike Hein took a stand against hydrofracking "brine" --- a concoction of substances sprayed on roadways in winter as a de-icer, in summer as a way of keeping down dust. The practice began several years ago in Pennsylvania. "I cannot and will not allow this issue to escalate. Because of the time constraints that are inherent in the process of passing a local law, which includes multiple public hearings that could result in a significant delay in formally implementing any law, I took action today to immediately alleviate public concerns regarding this issue."
The Tompkins County, New York, town of Dryden was sued after using its local zoning powers to limit oil and gas development, including fracking, within town borders. Deborah Goldberg points out that Dryden had never allowed any industrial development or heavy industry. "What they were doing was simply clarifying that the oil and gas industry was subject to the same rules as every other heavy industry. The industry, on the other hand, thought that it had a right to special treatment, and it sued the town in 2011, based on a theory that state law that regulates the oil and gas industry pre-empts local law that regulates land use, including zoning laws."
The town won at the trial level and won again at the intermediate court, in a unanimous decision, in favor of the town's authority to exercise its land use powers. On June 3rd, The Court of Appeals heard oral arguments... "The decision in that case will be a statewide precedent, and it is the end of the legal road. It is the final decision. It doesn't go any farther. There are no federal issues, so it's not going to be going up to the federal supreme court on any question."
According to the League of Women Voters of the North Country, 12 counties in New York State have passed legislation to control or ban the introduction of fracked waste and byproducts in their jurisdictions.
A city ordinance banning fracking in Albany made it through the common council after multiple attempts and one veto by then-Mayor Jerry Jennings, who explained he'd prefer decisions on hydrofracking be left to organizations like the state Department of Environmental Conservation and the Environmental Protection Agency. A State Supreme Court later ruled that oil and natural gas drilling could be banned by New York municipalities through zoning law.
Brad Gill - Executive Director of The Independent Oil and Gas Association of New York, hopes that New York's communities would recognize the rights of those who wish to enjoy the benefits of clean burning, indiginous and responsible natural gas development. "Many farms and other landowners so very badly need the positive impacts that our industry can safely bring to New York, especially these days, and we've seen that certainly in the Southern Tier of New York, in contrast to what we see in the Northern Tier of Pennsylvania. So it's very hard to attract investment and interest in a drilling program when a company has to navigate through a geographic patchwork of green and redlights. Honestly, its easier to set up shop in a neighboring state where our industry is embraced."
That final decision in the Dryden case is expected by July 4th but could come as early as this week.