New York Fracking Ban In Towns Upheld By Second Judge

By Dan Wiessner

ALBANY, N.Y., Feb 24 (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 (160 hectares).

"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 (112 km) 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 Dave Wiessner; Editing by Peter Cooney)

Comments

[Haveissues]

04:16 PM on 02/27/2012

It's not just about the drinking water either. Air quality, damage to infrastructure and here in Texas, we are in a record drought. These wells use millions of gallons of water. They are just now beginning to recycle the water here.

[vetxcl]

03:34 PM on 02/27/2012

Guess it's time for them to shop for "better" judges then.

[Vernie Taylor]

02:09 PM on 02/27/2012

This is a land rights issues. Communities have the right to say what happens to the land they live and raise their children on. It is not specifically about "fracking" and it is not about job creation. Any time individuals and communities can come together and win over the powers of big corp and the federal government (using eminent domain to rob land owners), it is usually a good thing.

[Peace Walker]

12:10 PM on 02/27/2012

Thank you Middlefield! Well done.

[Italianamerican]

10:15 AM on 02/27/2012

Of course they did. Why give people jobs and revenue to New York. You can just keep giving them tax payers money.

[vetxcl]

03:35 PM on 02/27/2012

Jobs for jobs sake is a shallow and limited solution.

[jholler]

03:58 PM on 02/27/2012

Unless somewhat knows something else about this, from my experience I've seen that a lot of the jobs "created" are actually imported from other states such as OK or TX. I've heard second hand accounts from fracking towns in PA that a lot of the workers are just that, and that this has coincided with a rise in the crime rate and conflicts with the locals as well. Something to consider.

[DINGCHIROPTERA]

09:13 AM on 02/27/2012

Fracking is the fastest way to ruining the environment around you.It should be banned outright. There are other ways to drill, fracking does too much damage to the surrounding area .
We are all in agreement that our home planet is in trouble, why make it easier for it to reject us? This is why we need to invest, and investigate, in alternate sources of energy before it's too late.

[vetxcl]

03:36 PM on 02/27/2012

Yes! How dare these people want to drink clean water!! It's an outrage!!

[rjhuntington]

02:00 AM on 02/28/2012

So the industry should just be allowed to ruin the aquifers? That seems to be what you're saying.

[Mailman]

07:43 AM on 02/27/2012

Not a tough decision, if you don't want fracking in NY then that's your business.

[clyde jones]

03:16 AM on 02/27/2012

According to some comments, some folks seem to think that ownership of private property and the rights afforded thereof supersede the right of the citizenry (your neighbors, your town) to protect the PUBLIC resource, groundwater, lying beneath. With fracking, the groundwater could possibly be contaminated forever.
This sense of entitlement is disgusting.

[pmag88]

04:15 AM on 02/27/2012

And it’s not just the water locally, but the air globally and the ocean estuaries where the fish stock breed.

[celcius232]

08:53 AM on 02/27/2012

The real disgust should be in the scientific and engineering illiterate presumption that drilling causes groundwwater contamination.

[Peace Walker]

12:12 PM on 02/27/2012

Right. That is why gas companies are paying to truck drinking water in to communities all over Pennsylvania and Texas.

[clyde jones]

03:27 PM on 02/27/2012

As a scientist/geologist/driller (BS/MS) with 17 years experience cleaning up contaminated water, my view is far from illiterate. This is what I do!
Sure, most wells will be built correctly (but some wont), minimizing upward mobilization, but it's easily discerned with a little research, that groundwater contamination can and does also arise from mis-handling of fluids at the surface (pipelines, catchments, etc). And like I said, some wells ARE poorly built, providing a direct upward conduit in YOUR drinking water.

There are numerous cases of neighborhoods joining together as a result of water well issues.
http://switchboard.nrdc.org/blogs/amall/incidents_where_hydraulic_frac.html
Just coincidence? Is it not enough that grandma Betty can light her drinking water on fire to make one question these practices?
I'm all for jobs, but not at the expense of the health of my neighbors children.
for starters: http://en.wikipedia.org/wiki/Fracking#Well_types

[D-Driller]

02:41 AM on 02/27/2012

Tough decision. If I were a NY landowner, which I am admittedly not, but I am a landowner in a couple other states, I would be quite upset about this ruling. The judge told a private citizen that they could not develop the resources that they legally own. Absolutely shameful. Imagine that, folks - you own your land, you own the mineral rights, you want to drill or mine or, well, it doesn't matter, does it - it's your land, you own it. And then a judge tells you what you can and can't do with it. Zoning battles are bad enough for surface structures, this is much worse. "Slippery Slope" is a good phrase for it - it opens things up for not just municipalities but say counties to decide what can be done in the county on private land - let me say that again, PRIVATE land. Do we want that as a nation? I sure as heck don't.

[Greybeard53]

03:17 AM on 02/27/2012

If fracturing the bedrock under YOUR land caused the fracture planes to extend under Mr Jones' farm as well, and his well went bad and his kids and horses died, are you prepared to take the moral and monetary responsibility for paying Jones for his losses?
It is the exact moral equivalent of you grinding asbestos up and letting the dust drift with the wind over your neighbor's land, or dumping benzine in the creek that passes over YOUR land.
Are you willing to sign papers stating that you will be responsible for unintended consequences of drilling and fracking?

[D-Driller]

04:24 AM on 02/28/2012

Good points. Let's examine. Fractures can be traced by sensitive "microseismic" surveys. If Mr. Jones did not lease his land, it is illegal to drill under his property, and the state will examine both the drilling plan as well as the stim plan to ensure that does not happen. If I was the operator of the well, then yes I would be legally responsible for any damage to his land, well, kids and horses (though not necessarily in that order...). It is not, by any stretch of the imagination, the same as "grinding up asbestos or dumping benzene in creeks". As you know, fracturing has not been proven to be harmful. Anywhere. Never happened. Asbestos is a partially-banned substance that has strict controls on its use and its disposal. Same with benzene. Those examples are not even in the same realm as fracturing on private land, a practice which has not been proven to be harmful. On top of that, reread what i wrote - I'm actually not focusing on fracturing. I am making the point that if you start letting a municipality tell you what you can do with your own land, then where does it stop? If it stops at fraccing - great for you. But what assurances do you have that is the end of it?

[pmag88]

04:17 AM on 02/27/2012

Yeah, you want to make a few hundred grand selling out the farm and wiping out the next 5 surrounding farms, what the hell. It's your business and no one else has a right to say.

[D-Driller]

04:26 AM on 02/28/2012

Good point. Now, reverse that. 5 farms around you, including yours, want to drill or mine or whatever - 1 farm does not, and pushes through this legislation. What are your feelings then?

[MCTSilverlakeCA]

12:29 AM on 02/27/2012

What I see in this Oil Company response is the same thing I see in the new higher prices for gasoline - nationwide EXTORTION by an Industry who thinks they are calling the shots on what and where they intend to exploit next, and are saying point blank - we don't care what happens to your land, your water, or your lives as long as WE make our profits and line our pockets... it's the same thing as the two food preservatives BHA and BHT - which are banned as *known* cancer causing substances in multiple other countries but allowed here because they have been used in food processing since before the 1940's and would be too costly for the food industry profits to use European safer substances instead - and don't even get me started on aluminum cans and soda leaching aluminum into your system which causes Alzheimers dementia as aluminum which reaches the brain never leaves and like when in WWII aluminum foil was dropped from aircraft to jam radar- it jams signals across synapses in the brain, and let's not forget polycarbonate plastic bottles and multiple other products that are far more harmful than good- but which bring in enormous profits for companies who just ignore the obvious medical consequences to the population while socking billions away in untaxed offshore accounts !!

[pmag88]

04:22 AM on 02/27/2012

Plastic is nasty stuff. Breaks down and is easily injested. Should be perfected into products designed to last hundreds or thousands of years and used for building materials, not for junk that ends up disintegrating into a global biohazard.

[votingthistime]

11:50 PM on 02/26/2012

I recently posted a comment to this article, didn't see it when I checked back, saw no pending ccomments, so I posted it again and got the following message: You have submitted this comment previously. Your comment may still be in queue. If you have questions about moderation contact [e-mail].


You can post to us this information [e-mail]
I await yourreply, huffingtonpost staff.

[votingthistime]

12:19 AM on 02/27/2012

Thank you, huffingtonpost staff, for publishing my comment. It was probably a busy night, what with the Oscars and all.

[vetxcl]

03:39 PM on 02/27/2012

Faved for humor.

[MCTSilverlakeCA]

12:31 AM on 02/27/2012

looka like they did post you ..this time. Remember what they say about 'squeaky wheels'...

[votingthistime]

10:47 PM on 02/26/2012

"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."
Love it! Hallelujah! Praise the Lord (on a Sunday, no less!). I was beginning to wonder about the American people. So maybe we’re NOT just going to bend over and say drill, baby, drill. So maybe the argument that, sure the drilling process known as fracking poisons our drinking water, but we need the jobs it generates, maybe that argument won’t carry the day anymore. Good. Now let’s focus on alternative sources of energy that DON’T poison the water supply. You can’t convince me that we’re doing all we can in that regard. Solar, wind, geothermal: we’ve barely stuck a TOE in that ocean. Again, congratulations to all the people who fought against this vile drilling procedure.

[CivilDebate10]

10:04 PM on 02/26/2012

Oh yes, what a "victory". I swear the left won't be happy until this country's economy is completely destroyed and everything is nationalized.

[WESmith]

11:08 PM on 02/26/2012

Coal, oil, natural gas and all of the other natural resources were nationalized in 1977. Several governmental agencies were formed to steward the resources and revenues.
We The People make over a trillion dollars a year selling and taxing these resources.
We let politicians handle our money for us.

[pmag88]

04:31 AM on 02/27/2012

nice try. Just substitute nationalized with privatized and add in the neofuedal concept of selling all our national assets and taxpayer funded projects and properties for pennies on the dollar to pay off a debt that republicans said wouldn't matter if we just created good paying jobs that would outgrow the debt.

You want to shrink central government and replace it with little fiefdoms where the locals call the shots with no oversight or accoutability. Paving the way for legalized thievery.

[JBaker]

09:49 PM on 02/26/2012

Fracking is an afterthought.

As I write this my building has been wasting enormous energy in heating that was not needed during unusually warm weather. Conversely, countless office buildings use so much air-conditioning during summer months that employees are forced to wear sweaters indoors when it is 90 degrees outside.

Let's not talk about intelligent energy conservation that would dramatically cut energy costs.

[pmag88]

04:41 AM on 02/27/2012

Hey, I've worked in buildings where they have ac running ice cold in one small section while the heat is on in another and this occurrs during summer and winter. Top it off with with multiple tv sets on in virtually every room while no one is in the rooms, plus all the redundant soda and vending machines and lights burning 24/7 in areas where they are not only not necessary, but mostly an annoyance that adds to stress due to eye strain, etc.

I've said it many times before and I say it again. America is addicted to waste.

[vetxcl]

03:43 PM on 02/27/2012

After thought eh? Yeah, go tell that to the gas lobbyists and the millionaires profiting from the sale of gas.
Certainly, efficiency is an issue, but not the topic of the above article - and not something that gas industry lobbyists are likely to bring up.

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