Shale Daily / NGI All News Access

Court Upholds Second New York Town's Drilling Ban

A local ordinance that bans oil and gas operations in the Town of Middlefield, NY, has been upheld by the Otsego County Supreme Court, the second time in a week that a New York state judge has ruled in favor of such a law.

In a ruling issued Friday, Tompkins County Supreme Court Judge Phillip Rumsey found that Middlefield's zoning law is not "void as being preempted by New York State Environmental Conservation Law," as had been argued by Cooperstown Holstein Corp. (CHC) and its owner, Jennifer Huntington. The state law does not preempt a municipality "from enacting land use regulation within the confines of its geographical jurisdiction and, as such, local municipalities are permitted to permit or prohibit oil, gas and solution mining or drilling in conformity with such constitutional and statutory authority," Rumsey wrote in his decision.

Middlefield enacted its zoning law in June, 2011. In a lawsuit filed three months later, CHC challenged the law, saying it would "frustrate" the purpose of two oil and gas leases the dairy company had executed with Elexco Land Services Inc. in 2007 (see Shale Daily, Sept. 19, 2011). Attorneys represented CHC had argued that state law prevents towns and local municipalities from regulating oil and gas.

Last week a Tompkins County Supreme Court judge ruled that an ordinance and a zoning requirement enacted last year by the town of Dryden, NY, essentially banning all Marcellus Shale oil and gas activities in the municipality, are not preempted by state law and can remain in effect (see Shale Daily, Feb. 23). In that case Judge Phillip Rumsey disagreed with Anschutz Exploration Corp.'s assertion that the town's actions violated the state Oil, Gas and Solution Mining Law.

Both the Middlefield and Dryden decisions are expected to be appealed.

A moratorium on drilling horizontal wells in the New York portion of the Marcellus Shale remains in effect as the state's Department of Environmental Conservation (DEC) works on proposed rules governing high-volume hydraulic fracturing (fracking). Key supporters of shale development in the state have said the DEC's proposed rules are too restrictive and in their current form would drive operators to other states (see Shale Daily, Jan. 17).

In July 2008 then-Gov. David Paterson ordered the DEC to complete the supplemental generic environmental impact statement (SGEIS), because the original impact statement was completed in 1992, before technological changes in shale development.

DEC Commissioner Joe Martens has said the agency received more than 60,000 comments on its recommendations in the revised SGEIS, and more than 6,000 people attended public hearings on the practice (see Shale Daily, Feb. 8). The DEC has already recommended that fracking be banned in the watersheds of New York City and Syracuse (see Shale Daily, July 5, 2011).

Although the SGEIS is to provide the framework for DEC's fracking permit process, lawmakers in the New York State Assembly are reportedly considering separate measures extending the moratorium on fracking until June 1, 2013 and enacting "home rule" legislation that would give municipalities the power to ban fracking in their communities.

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