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Accuracy • Independence • Integrity

September 19, 2017   |   Ithaca, NY

News

Dryden fracking ban upheld by zoning lawsuit decision

A state judge ruled Tuesday that the Town of Dryden was within its rights to ban hydraulic fracturing, a decision that stopped a lawsuit filed by a Denver-based oil and natural gas company against the town’s ban.

In August, the Dryden Zoning Ordinance was amended to ban all activities relating to the exploration, production or storage of natural gas extraction, according to the court document, Anschutz v. Dryden.

Anschutz contended that the New York state Oil, Gas and Solution Mining Law placed the authority to regulate oil and gas development with the state rather than with local government.

Mahlon Perkins, the attorney representing the Town of Dryden, said the case’s verdict was a sound decision by Judge Phillip Rumsey because it shows surrounding municipalities that they have the power to fight state law.

“It’s a victory for the local land use powers given to villages, cities and towns,” he said. “Certainly their zoning authority will not be usurped by the provision in the state Oil, Gas and Solution Mining Law that constitutes the supersession provision.”

Rumsey determined that New York state oil and gas law does not restrict municipalities from changing their own zoning laws to halt natural gas pursuits, according to the court decision.

Assemblywoman Barbara Lifton, D-N.Y., said this decision, if upheld after a possible appeal, has the potential to set a precedent in state law.

“I’m very pleased with it,” she said. “I’m not surprised, because I think the merits are there. It’s a very compelling case, I think, for local control both in our state constitution and a lot of case law around this issue.”

The lawsuit was filed by Denver-based Anschutz Exploration Corporation last fall after Dryden changed its zoning laws to ban the controversial process of extracting natural gas from the ground. Anschutz owns 22,000 acres of land leased in Dryden.

This case could set a precedent for other towns in the area that have banned or are considering banning fracking on municipal land. There is currently a similar case under way in Middlefield. The City of Ithaca and the towns of Danby and Ulysses have banned fracking, and the town of Caroline is considering a ban.

Thomas West, founder and managing partner of The West Firm, which represented Anschutz in the case, said the company is evaluating a decision to appeal the decision.

“We remain confident in our position that municipalities cannot ban natural gas drilling and so we’re looking forward to the decision in the Middlefield case and we’re hopeful that the judge in this case will reach a different conclusion,” West said.

Along with the appeal, West said Anschutz is evaluating whether to renew its leases. He said though Anschutz respects the decision, they expect a different outcome in the future.

“We certainly respect Judge Rumsey, but believe a contrary view will ultimately carry the day,” he said.

The court decision will not keep Lifton from continuing to fight for legislation that will grant municipalities a more explicit right to ban fracking.

“I’m going to continue to push to get a good ‘home rule’ bill with the same language in both houses,” Lifton said.

Perkins said he would not be surprised if Anschutz appealed the decision, and in that event, the defendants will wait for the company to take the first step.

“It’s a case of first impression, and it will affect other municipalities who might use this as justification for enacting land use controls over heavy industrial activity associated with natural gas extraction and exploration,” he said.

Lifton said the decision is not final, but is still significant for the state.

“This is an important decision. It’s a meaningful decision. It’s being looked at statewide, obviously. But we’ll have to see whether it gets appealed. I suspect it will be.”