| NEW YORK
NEW YORK Feb 21 In a blow to the oil and
gas industry, a judge has ruled small towns in New York have the
authority to ban drilling - including the controversial method
known as fracking - within their borders.
In a ruling released late Tuesday, state Supreme Court
Justice Phillip Rumsey held that the Ithaca suburb of Dryden's
recent ban on gas drilling falls within the authority of local
governments to regulate local land use.
Anschutz Exploration Corporation, which owns leases on more
than 22,000 acres (8,900 hectares) in the town and has invested
$5.1 million in drilling operations there, argued the ban
violated a state law designed to create uniform regulations for
oil and gas drilling and encourage the extraction of those
Rumsey disagreed, holding the law was not written to favor
the industry, but to regulate it in such a way that "prevents
waste ... and protects the rights of all persons."
"Nowhere in the legislative history (of the state oil and
gas law) is there any suggestion that the legislature intended -
as argued by Anschutz - to encourage the maximum ultimate
recovery of oil and gas ... or to preempt local zoning
authority," Rumsey wrote.
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 but critics say the
procedure has polluted water and air.
Municipal control is a top issue in the heated debate over
whether to allow fracking in the Marcellus Shale, a massive rock
formation believed by some industry officials to contain enough
natural gas to power New York for more than 400 years.
Whether the state will allow fracking is ultimately a
decision for Governor Andrew Cuomo, who has said he will only
approve the method if it can be done safely.
The state Department of Environmental Conservation last year
issued a 1,500-page report and set of draft regulations that
prompted more than 45,000 public comments. Once the agency has
finished sifting through them, it will release a final report
for Cuomo's consideration.
Mahlon Perkins, the town attorney for Dryden, argued courts
have recognized local authority in cases related to the state's
mining law, which is similar to the oil and gas law.
Anschutz' attorney, Tom West, said in an interview last
month that a ruling in favor of local government control would
be "the kiss of death" for drilling in New York. But on Tuesday,
he said he was optimistic about the appellate process if
Anschutz decides to appeal Rumsey's decision.
"For the 'fracktivists' it's a significant ruling, but it's
only the first step in the court process," West said, referring
to the large number of vocal opponents to fracking, particularly
in some upstate communities.
Perkins was not available for comment. Anschutz has 30 days
to appeal the ruling.
Environmental groups applauded Rumsey's ruling.
"The communities targeted for drilling need the power to
determine for themselves when, where, and if fracking is
permitted," Katherine Nadeau, a program director at
Environmental Advocates of New York said in a statement.
The case is Anschutz Exploration Corp. v. Town of Dryden, New
York State Supreme Court, Tompkins County No. 2011-0902.