Deborah Goldberg, counsel to Earthjustice, whose clients are towns that imposed anti-fracking ordinances, faced opposing arguments by Scott R. Kurkoski, a partner at Levene Gouldin & Thompson, whose landowner clients support fracking, at the Court of Appeals in Albany Tuesday. (Tim Roske)
ALBANY – Several state Court of Appeals judges suggested Tuesday during arguments in two rural upstate zoning cases that their rulings could have a wide-ranging effect on the future of the natural gas drilling technique known as “fracking” in New York and on state energy policies in general.
Chief Judge Jonathan Lippman (See Profile) closed more than an hour of arguments in Matter of Wallach v. Town of Dryden, 130, and Cooperstown Holstein Corporation v. Town of Middlefield, 131, by observing that while having adequate energy supplies is an important public policy consideration, so is the need not to “bulldoze” opinions of residents in communities opposed to hydraulic fracturing.
“We get it,” Lippman told Scott Kurkoski, a partner at Levene Gouldin & Thompson in Vestal who is representing a landowner in the case. “We get their policy arguments, too.”
Lawyers for Middlefield in Otsego County and for Dryden in Tompkins County argued that their zoning ordinances, which ban fracking, are not preempted by state Oil, Gas and Solution Mining and Environmental Conservation laws which regulate drilling or mining for energy or other natural resources.
“It does say in quite a few places in these statutes that we want to foster and grow and have a vibrant energy industry in this state,” Judge Robert Smith (See Profile) told Deborah Goldberg, who was representing Dryden and its fracking ordinance. “How are you supposed to do that if any town can prohibit it [fracking] that wants to?”
“Precisely the way that Texas does it and Oklahoma does it and California does it and Illinois does it, where all of the localities have exactly the right that we are talking about here and the industry is thriving,” replied Goldberg, counsel for the Manhattan-based environmental group, Earthjustice. “This industry figures out what the lay of the land is and it manages to accommodate itself and it does very well.”
John Henry, a partner at Whiteman Osterman & Hanna in Albany, who was arguing on behalf of Middlefield and its ban, compared the law outlawing fracking to zoning laws in several localities prohibiting generators of another alternate energy source favored by state policy—wind farms.
But Kurkoski noted that 70 New York municipalities have banned oil and gas drilling, a prerogative state law precludes them from taking.
“Perhaps it is a suggestion that the population of New York is not so enamored with hydrofracking?” Judge Jenny Rivera (See Profile) suggested.
“Are we going to let 932 towns decide the energy policy of New York state?” Kurkoski countered.
Lippman asked if the Legislature should step in to clarify whether municipalities may, in fact, ban fracking and other forms of energy extraction of whether it is the state’s purview.
“What about the Legislature deciding the energy policy of New York state if they’re not clear about what’s happening now?” the chief judge asked. “Why isn’t that a good thing to let the representatives of the people determine, unless it has already been determined?”
“The Legislature, after you’ve determined this case, can fully look at it, amend what they did and make that adjustment,” Kurkoski said.
Lippman acknowledged that the controversial nature of fracking is “precisely” why the Court of Appeals was hearing the cases instead of the Legislature itself making it clear if state law prohibits local ordinances from banning fracking.
“It’s not so easy to get action in one direction or another” right now on a fracking-related bill, Lippman said.
Thomas West, a partner in the West Law Firm in Albany, argued against the Dryden ordinance. He said state mining law, which is codified in Article 23 of the state Environmental Conservation Law, says state law “shall supersede all local laws and ordinances relating to the regulation of the oil, gas and solution mining industries,”
“I think ‘all’ means ‘all’,” West said.
He said municipalities are limited to setting local property taxes and the rules for traffic on local roads and bridges when it comes to the regulations that affect the oil and gas industry.
In May 2013, Appellate Division, Third Department panels ruled 4-0 in each case that localities were not preempted from enacting zoning laws that ban hydrofracking.
Presiding Justice Karen Peters wrote in both cases that she could find nothing in the state’s laws “indicating an intention to usurp the authority traditionally delegated to municipalities to establish permissible and prohibited use of land within their jurisdictions” (NYLJ, May 3).
In their papers before the Court of Appeals, both municipalities argued that the time-honored principle of “home rule”—the basic principle that local governments have the final say on issues of local concern, such as land use—weighs against a finding that state law should supercede local ordinances.
New York has had a moratorium on commercial fracking since 2008.
Gov. Andrew Cuomo said upon taking office in 2011 that his administration would study the process and decide conclusively if it was safe to the environment and residents. But more than three years later, the governor said that review had not been completed.
His Republican challenger this fall, Westchester County Executive Rob Astorino, meanwhile, has accused Cuomo of dragging his feet on a politically sensitive topic while allowing hard-pressed areas of upstate to languish economically.
The Court of Appeals is expected to rule on the fracking cases in late June or early July.