Dryden sits atop the Marcellus Shale, a rock formation that runs under Pennsylvania and upstate New York. Back in 2006, when Sumner had just joined the town board, new studies were starting to trickle out showing far larger estimates of the natural gas contained in the shale than previously thought. A process known as hydraulic fracturing, or fracking, which uses a high-pressure mixture of chemicals, sand, and water to break into those rock formations, also allowed them to tap into these new reserves. The fracking boom had already started to take hold in nearby Pennsylvania, and landsmen soon began descending on upstate New York, offering property owners leases to secure the right to drill. In Dryden, some landowners were eager to lease, while others were less sure. Most just didn’t really know to expect….
Under New York’s Oil, Gas and Solution Mining Law, towns can’t regulate oil and gas; that can only be done at the state level. Many towns first assumed there was nothing they could do to stop fracking entirely. But a pair of environmental lawyers from nearby Ithaca, Helen and David Slottje, figured out that towns might be able to use zoning rules to bar that type of industry from coming in instead of trying to regulate it, since zoning is left to towns to determine. “People had had it beaten into their heads there’s nothing they can do,” said Helen Slottje. “Then two lawyers from Ithaca say, ‘We think you can just say no.’ That was perceived as pretty radical at that time.” The Slottjes worked with other nearby towns, including Ithaca, to pass measures before it went to a vote in Dryden….
Just a few weeks after the board approved the ban, Anschutz Exploration Corporation, which had leased a total of 22,200 acres in town, announced it was suing. The company argued that the town was overstepping its rights by regulating the gas industry. It’s hard to say why the industry picked Dryden as the town to take to court. It could be because Anschutz had spent $4.7 million on leases there, making it a prime target. Or it could be because there was some particularly vocal local opposition in the town.
The trial court, however, sided with Dryden in a February 2012 decision. Anschutz appealed but later dropped out of the case; another fracking company, Norse Energy, decided to continue the suit instead. But last Thursday, the four judges on for the appellate court in New York’s Third Judicial Department unanimously agreed that state law “does not preempt, either expressly or impliedly, a municipality’s power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders.”
The lawyer for Norse has said his client will seek to appeal to the state’s Court of Appeals. However, because Dryden has already won twice, the plaintiff would need special dispensation from the state’s highest court to have the case heard again.
Now that Dryden survived the suit, Slottje says, “I think there are going to be a lot of towns that are emboldened to proceed.”
(via Mother Jones)
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- climateadaptation said:good find. this is called delegated authority, where the state ‘delegates police powers’ to local communities to make decisions, such as zoning. very common. big developers try to fight it all the time.
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