* Anschutz Exploration files suit against town of Dryden
* Unincorporated town amended zoning to bar gas drilling
* State department has recommended end to NY drilling ban
By Dan Wiessner
ALBANY, NY, Sept 19 A lawsuit challenging a
small town's ban on natural-gas drilling could have
implications throughout New York state, where officials are
poised to approve a controversial drilling method known as
Privately held Anschutz Exploration Corp filed suit on
Friday against Dryden, a rural suburb of Ithaca with about
13,000 residents that last month amended its zoning laws to bar
all gas drilling within its unincorporated borders.
New York's Department of Environmental Conservation has
recommended ending a year-long ban on drilling in New York,
although a public comment period on the rules was extended this
month following concerns that fracking contaminates underground
wells and aquifers.
The Anschutz suit, which asks the state Supreme Court in
Tompkins County to invalidate the amendment, is the first to
test the legal implications of the state's move.
Fracking, or hydraulic fracturing, involves cracking open
rocks deep underground with a blast of sand, water and
chemicals to unleash natural gas and oil.
Anschutz, which controls more than 22,000 acres in Dryden,
said New York's Environmental Conservation Law bars local
governments from any regulation of drilling.
Officials in Dryden and other towns considering their own
restrictions on gas extraction say the law prohibits them only
from regulating the drilling itself and not from saying where
or whether it can take place.
Kevin Bernstein, an environmental lawyer in Syracuse, said
the intent of the law was to create a consistent regulatory
scheme throughout the state.
"For there to be a hodgepodge of attempted regulation by
municipalities would run counter to that original purpose,"
Dryden's amendment said it was "not directed at the
regulatory scheme for the operation of natural gas wells" but
addresses land use and nuisance concerns as well as concerns
over health and the environment.
The amendment is well within the town's power, said
Assemblywoman Barbara Lifton, an Ithaca Democrat who has been
an outspoken opponent of the drilling industry.
"If they wanted to say, 'We're going to require you to take
the noise level down 50 percent,' or 'This is how you're going
to dispose of waste fluid,' then you're regulating the
industry, and that is clearly the prerogative of the state,"
"But saying we're going to not allow it at all is not
regulating the industry itself."
Lawyers defending the industry disagree.
"The law says they can regulate roads and taxes, and that's
it," said Tom West, Anschutz's lawyer.
"I'm sure some municipal attorneys will try to come up with
other clever means to accomplish the same goal (of banning
drilling) but we will argue if it prohibits drilling in any
way, it's beyond their authority."
Dryden is not the first New York town to enact a drilling
ban. At least a dozen local governments have passed some type
of prohibition on gas drilling, but most are not likely
drilling sites, so the industry chose not to litigate, West
(Editing by Ellen Wulfhorst and Cynthia Johnston)