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What you need to know for 01/19/2018

Anti-frack zoning to get court review

Anti-frack zoning to get court review

New York’s highest court will decide whether to uphold a lower court ruling that allows municipaliti

New York’s highest court will decide whether to uphold a lower court ruling that allows municipalities to impose local zoning restrictions that ban companies from drilling for natural gas.

The state Court of Appeals has agreed to take up the cases of Norse Energy and Cooperstown Holstein in their challenges to a pair of upstate towns imposing land-use authority to prohibit gas drilling. The cases pertain to zoning laws enacted in the Tompkins County town of Dryden and the Otsego County town of Middlefield that prevent high-volume hydraulic fracturing development — also known as hydrofracking.

The companies argue New York’s authority to regulate the oil and gas industry through state laws supersedes any authority imposed by local municipalities. The case could have a major impact on natural gas development throughout the state, said Tom West, an Albany attorney arguing the appeals on behalf of gas industry,

“Obviously we’re very pleased the court has decided to hear these important cases as in some respects it will decide the future of oil and gas in New York state,” he said.

The case could affect a number of laws adopted over the past year in several Schoharie County municipalities being eyed for natural gas development, even though New York has a now 5-year-old moratorium on such drilling. Gas companies have leases on nearly 50 properties in the county, prompting many towns to enact restrictive zoning laws to regulate drilling in the event the state moratorium is lifted.

Lucrative amounts of natural gas are buried in the Marcellus Shale formation beneath part of New York, Pennsylvania, Virginia and Ohio. Marcellus Shale gas is already being extracted in large amounts from Pennsylvania, prompting a proposal to build a $683 million 122-mile pipeline from the Susquehanna River Valley to a compressor station in the Schoharie County town of Wright.

Dave Everett, an attorney arguing the case on behalf of a coalition of municipalities and agencies that support home rule, wasn’t surprised the Court of Appeals is taking up the case because it will have a broad impact across the state. He said the lower courts have consistently sided with the municipalities over the gas industry when it comes to zoning regulations.

“It’s a zoning issue and municipalities have the right to control land use through zoning,” he said. “Natural gas drilling is no different than any other type of industrial land use.”

Hydrofracking proponents welcomed a fresh review of the case, blaming the zoning bans for preventing investment in the state from the gas drilling industry. Karen Moreau, the executive director of the New York State Petroleum Council, said the court taking up the issue could be “a significant step toward ending a state-wide moratorium that is stifling job creation and investment.”

“Hydraulic fracturing is a safe and time-tested engineering technology that is creating economic opportunities and jobs in areas of the country that need it the most,” she said in a statement.

Brad Gill, the executive director of the Independent Oil & Gas Association of New York, said local bans on exploration violate state environmental conservation regulations and create “a patchwork public policy and a level of regulatory uncertainty that discourages business development.”

“We’re pleased to know the merits of the issue will receive a dispassionate examination by the Court of Appeals,” he said.

Schoharie County municipalities vary in the types of ordinances applied to natural gas drilling. Some towns restrict the type of machinery that can be used for drilling, while others require variances that roll out a lengthy and cumbersome process for such projects.

The town of Summit recently enacted laws that regulate the use of industrial equipment and require companies to repair any damage incurred by operating heavy machinery on local roads. Supervisor Harold Vroman said he’s watching what happens at the Court of Appeals, but doesn’t believe the town’s regulations are as strict as other communities.

“It’s not a ban,” he said. “It doesn’t prevent it from happening.”

Sharon Supervisor Sandra Manko said recent changes to the comprehensive plan and zoning code were aimed at preserving the town’s mineral water resources by preventing local hydrofracking projects. She said the latest court challenge threatens to remove the ability of towns to decide what industries are appropriate.

“Let the towns make the decision based on what is best for them to protect their environment,” she said.

Like Sharon, the town of Schoharie didn’t enact an outright ban. But rather the town tweaked its code to make it extremely difficult for hydrofracking projects to get off the ground.

Supervisor Gene Milone said the decision on whether to allow natural gas drilling should rest with local municipalities. If a town doesn’t want to embrace hydrofracking projects, he said, they shouldn’t be forced into taking that risk.

“As a community we are the ones who define our future, not the gas companies and not the governor of the state,” he said. “We are the ones that have to live with what takes place in our communities.”

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