New York Supreme Court Upholds Towns’ Fracking Bans


In two separate decisions issued last week, the Supreme Court of the State of New York (the state's trial level court) upheld the Town of Dryden's ban on hydraulic fracturing (or fracking) in Tompkins County, and upheld the Town of Middlefield's ban on fracking in Otsego County.  (Fracking involves the injection of a mix of water, chemicals and propping agents under high-pressure into subsurface gas bearing formations causing them to fracture, thereby allowing for the release and production of natural gas trapped in those low permeability formations.)  Both courts held that while the state has control over how drilling operations occur, local governments retain discretion over where such activities take place.

On February 21, 2012, in Anschutz Exploration Corp. v. Town of Dryden, Index No. 2011-0902, Supreme Court Justice Phillip R. Rumsey held that New York state law does not preclude a municipality from using its police powers to regulate land use and to ban oil and gas exploration and production.  The decision is the first in New York to affirm local governmental powers in the controversy over drilling for natural gas in New York's portion of the Marcellus Shale.  Geologists estimate that the Marcellus Shale contains as much as 489 trillion cubic feet of natural gas, or more than 400 years' supply for New York at its current level of use.

In August 2011, the Dryden Town Board amended the town's zoning ordinance to ban all activities relating to oil and gas extraction, development and production, and "prohibit the exploration and extraction of natural gas and or petroleum and the storage, treatment or disposal of natural gas exploration and production wastes within the Town."  Town of Dryden Resolution No. 126 (2011).  Denver-based oil and natural gas company Anschutz Exploration Corporation sued the town, arguing that it exceeded its authority by amending the zoning law to halt natural gas pursuits through the use of fracking.  Anschutz had acquired substantial land holdings in the area and invested millions in exploratory drilling activities.

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