NY Local Land Use Laws Upheld in Challenges to Municipal Drilling Prohibitions

Karen Edelstein, NYS FracTracker Liaison

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New York State has had a long history of natural gas drilling. The earliest gas wells were drilled in Fredonia, NY in 1825, and by 1857, engineers had discovered that if they fractured rock layers at the base of a gas well, the process stimulated greater flow of gas from the rock strata. Natural gas has been a common source of fuel for both heat and lighting for many years, and many rural properties in central and western New York have been leased and drilled. The New York State Department of Environmental Conservation lists nearly 40,000 wells in their database. While slightly fewer than half of those wells are now plugged and abandoned, many are still in production. Virtually all of these wells are vertical, conventionally drilled gas wells.

In around 2005, a new wave of gas leasing began in New York State. Companies conducted seismic testing throughout the rural countryside, with “thumper trucks” moving in slow formations along town roads, and helicopters canvassing the region dropping their cargoes of cables that were unrolled across fields and forests to aid in further assessment. Simultaneously, “landsmen”—hired by the gas industries—were going door-to-door, offering leasing deals to homeowners. Promoting a rationale of “energy independence” and appealing signing bonuses, the landsmen were successful in convincing tens of thousands of rural New Yorkers to lease their land for natural gas. With a history of conventional, vertical gas drilling in the area, many landowners did not consider asking an attorney to review the new leases. Furthermore, no mention was made of the recently-developed process of gas extraction: high volume, slickwater, horizontal hydraulic fracturing (HVHF), a technique that industry would want to use for natural gas extraction in the Marcellus Shale.

As awareness about the new extraction process, combining high volume, chemically-enhanced, hydraulic fracturing with horizontal drilling, began to spread among New York State communities, local decision-makers and citizen groups became concerned about risks inherent to the method. Troubling stories of polluted air and drinking water, impacts to human- and livestock health, and economic and social woes connected with rapid industrialization of rural communities spread from Pennsylvania, Colorado, Texas, and Wyoming, where HVHF was well underway.

Yet in New York State, the Department of Environmental Conservation (DEC) houses divisions that potentially work at cross-purposes with each other — one making laws that encourage mineral extraction, and the other that is supposed to oversee protection of land and water resources. Concerned citizens also became aware that changes to the Clean Air and Clean Water Acts, promulgated during the recent Bush administration, now exempted oil and gas drilling. Would there be any legal means of standing up against potentially disastrous industrialization of our rural landscape?

Investigative journalists including Ian Urbina (New York Times) and Abram Lustgarten (ProPublica) published hard-hitting articles that time and again confirmed that New York had a lot to be concerned about if wide-spread HVHF were to come to our state. Scientists stepped forward with additional information that the DEC had not supplied in their draft environmental impact statements. Citizen committees formed to discuss both the science and the social implications of allowing wide-spread gas drilling in our communities.

New York State’s Department of Environmental Conservation laws prevent local governments from regulating oil and gas development. However, home rule rights are also accorded to local governments. While, by law, municipalities cannot regulate industry, many attorneys are now arguing that towns can, on behalf of the health and well-being of their constituents, determine land use laws through zoning and other ordinances. Some of these land use laws may result in effectively banning activities such as HVHF in those towns.

The towns of Dryden (in Tompkins County, NY), and Middlefield (in Otsego County, NY) were two of more than twenty towns that put laws in place in the past year that banned HVHF. In the fall of 2011, Denver-based Anschutz Exploration Corporation sued the Town of Dryden, saying that state laws allowing for drilling pre-empted municipal laws. On February 21, 2012, State Supreme Court Judge Rumsey upheld Dryden’s right to set their own zoning regulations against HVHF stating, “Nowhere in legislative history provided to the court is there any suggestion that the Legislature intended — as argued by Anschutz — to encourage the maximum ultimate recovery of oil and gas regardless of other considerations, or to preempt local zoning authority.”

In Otsego County, the situation was slightly different. A local dairy farmer, who had leased her land sued the Town of Middlefield, asserting that the Town’s ban prevented her from enjoying the full value of her property. Just a week following the Dryden decision, a different judge ruled in the Middlefield case, and decided in favor of the town. Because drilling had not yet begun, the situation could not be considered a “takings.” The judge felt that while New York State can dictate (through regulations) how any industry operates, it is up to the town to decide where those industrial activities may take place.

Until the cases are heard in the Court of Appeals, these decisions stand as the opinion of the courts, but it is possible that there will be additional suits in the lower courts before a final decision is reached that will set the standard statewide. Nonetheless, the Dryden and Middlefield decisions clearly show that the lower courts support local community rights.

Although lawsuits are costly, the towns’ legal efforts have been supplemented by organizations that support the bans, and their costs have been reduced through the generous support of ordinary people. The prospect of additional suits has not deterred New York State’s municipalities from passing bans and moratoria preventing HVHF. To date, 21 towns have established bans, and more than 50 towns have enacted moratoria. Nearly 60 additional towns are in the process of developing bans or moratoria. See below for a map-in-progress within Data.FracTracker.org of the areas where bans and moratoria are in place or in development:

Progress of New York State towns enacting home rule to control impacts of high volume hydraulic fracturing for natural gas: