2nd New York state judge upholds fracking ban in towns

ALBANY, New York Sat Feb 25, 2012 7:39pm EST

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ALBANY, New York (Reuters) - A New York state judge on Friday upheld an upstate community's ban on gas drilling, marking the second victory this week for opponents of the drilling method known as fracking.

The authority vested in towns and cities in New York to regulate use of their land extends to prohibitions on drilling, acting state Supreme Court Justice Donald Cerio ruled on Friday, dismissing arguments by a landowner who had already sold leases on almost 400 acres.

"Municipalities are not preempted ... from enacting local zoning ordinances which may prohibit oil, gas and solution drilling or mining," Cerio wrote. "The state maintains control over the 'how' of (drilling) procedures while the municipalities maintain control over the 'where.'"

Jennifer Huntington, a dairy farmer, argued the town of Middlefield's ban was pre-empted by a state law designed to create a uniform regulatory scheme for the oil and gas industry. Cerio disagreed, holding that nothing in the legislative history of the law and its numerous amendments suggested state lawmakers intended to stop towns from barring heavy industry.

Middlefield is about 70 miles west of the state capital, Albany.

Cerio's ruling was similar to a decision released on Tuesday that dismissed a bid by gas company Anschutz Exploration Corp to overturn a drilling ban in the Ithaca, New York, suburb of Dryden.

In that decision, Supreme Court Justice Phillip Rumsey held state law was crafted to regulate industry in such a way that "protects the rights of all persons."

The rulings come as the state Department of Environmental Conservation prepares a final report on the safety of fracking, which is currently not allowed in New York. Governor Andrew Cuomo is expected to make a final decision on the issue later this year.

Fracking is a process in which chemical-laced water and sand are blasted deep below ground to release oil and natural gas trapped within rock formations. It has allowed companies to tap a wealth of new natural gas reserves in other states, but critics say the procedure has polluted water and air.

Middlefield's attorney, David Clinton, was not immediately available to comment, but said earlier on Friday that victories in his case and in Dryden could have statewide implications.

"For the last year or so, the gas industry has been threatening (towns), 'you're going to lose in court, so don't even waste your money,'" said Clinton. "So (the Dryden decision) certainly emboldens other towns."

Huntington's lawyer, Scott Kurkoski, did not immediately return a request for comment, but said earlier this week that a ruling in favor of the town could chase drilling companies from the state.

The case is Cooperstown Holstein Corp. v. Town of Middlefield, New York State Supreme Court, Otsego County No. 011-0930.

(Reporting by Dan Wiessner; Editing by Peter Cooney)

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