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Small Towns Emerge Victorious in Recent Legal Battle on Fracking

July 29, 2014

Hydraulic fracturing, or “fracking,” has become one of the most controversial issues that environmentalists and oil companies alike are grappling with.  Hydrofracturing is a process by which high-pressure fluid is injected into small holes that have been drilled into the ground, in order to create fractures in deep-rock formations.

The fracturing of the rock then allows oil and natural gas, which would otherwise be trapped and inaccessible, to escape via wells.  Proponents of fracking point to its economic benefits, as well as the potential for the United States to become less reliant on foreign oil.  Critics, however, are concerned that the environmental costs, including potential groundwater contamination, possible triggering of earthquakes, degradation of air quality, loss of freshwater, and consequential health risks, outweigh the economic benefits of fracking.

In New York State, high-volume fracking has been suspended since 2008, when then-Governor David Patterson launched an extensive environmental review in order to determine the public health risks posed by fracking. The review currently continues under Governor Andrew Cuomo, with no sign of completion in the near future.

However, towns across the state have taken the matter into their own hands.  Throughout the last six years, over 150 towns and cities have passed bans on fracking within their lines.  Dryden and Middlefield passed zoning ordinances in 2011 that prohibited any drilling or hydrofracturing; the validity of each of these bans has been challenged, and as a result, each town has been entrenched in a long legal battle ever since.  Dryden’s opponent is a Colorado-based oil and gas company, while Middlefield’s dispute involves a local dairy farm.  The lawsuits ultimately boil down to whether or not individual towns and municipalities have the authority to ban drilling and fracking using zoning laws that apply within their own boundaries.  The lower courts had ruled in favor of the towns, and in a precedent-setting decision, New York State’s Court of Appeals upheld the prior decisions and ruled 5-2 in favor of Dryden and Middlefield.  Writing for the majority, Associate Judge Victoria Graffeo stated: “We conclude that they may because the supersession clause in the statewide Oil, Gas and Solution Mining Law does not pre-empt the home rule authority vested in municipalities to regulate land use.”

The decision is significant for the future of fracking in New York State, as large companies are now likely to shy away from investing in a state in which local towns and municipalities can essentially make autonomous decisions about fracking.  Further, the decision could have even wider implications as fracking opponents hope that the ruling will spur communities in other states to follow suit and take action at the local level.  The number of key players involved continues to rise, with oil companies, the government, landowners, environmentalists, public health experts, and local communities all weighing in.  As public opinion in New York remains evenly divided, it is likely that the issue of fracking will continue to appear in the courtroom.