Plaintiffs suing two municipalities in New York State for enacting bans on hydraulic fracturing (fracking) will soon have their day in court. Meanwhile, the city of Binghamton, which had its day in court — and lost — is considering an appeal.

All three cases are being watched closely by state policymakers, supporters and opponents of oil and natural gas development, and other municipalities in New York’s portions of the Marcellus and Utica shales.

Within days of each other last year, an oil and gas company and a private landowner filed separate lawsuits, respectively, against the Town of Dryden in Tompkins County and the Town of Middlefield in Otsego County for enacting bans on fracking (see Shale Daily, Sept. 21, 2011; Sept. 19, 2011). Five months later, again within days, two local judges upheld the bans (see Shale Daily, Feb. 29; Feb. 23).

Scott Kurkoski, an attorney with the Binghamton firm Levene Gouldin & Thompson LLP, told NGI’s Shale Daily on Wednesday that a record on appeal has been sent to other parties in the case Cooperstown Holstein Corp. v. Town of Middlefield (Index No. 2011-0930), and that an appeal would be filed within days.

Thomas West, an attorney for The West Firm PLLC in Albany, NY, on Thursday told NGI’s Shale Daily that an appeal in the other case, Anschutz Exploration Corp. v. Town of Dryden (Index No. 2011-0902), was also progressing. He said plaintiffs’ attorneys for both cases were working as co-counsel. “We hope to file everything by next Friday [Oct. 12],” West said. “That’s our goal.”

West added that he was waiting for an appellate court decision on whether to allow Norse Energy Corp. ASA to be substituted as the lead plaintiff in the Dryden case, replacing Denver-based Anschutz Exploration Corp. (AEC). “[AEC] still has assets, but they’re not investing anything in New York, including with this case,” West said.

The Dryden and Middlefield cases are advancing in the wake of a judge invalidating the city of Binghamton’s two-year ban on fracking (see Shale Daily, Oct. 4). Broome County Supreme Court Judge Ferris Lebous struck down the ban on the grounds that it was actually an improperly enacted moratorium.

“We’re starting to see a positive resolution,” Kurkoski said, adding that more than 40 towns in the heart of the Marcellus have adopted pro-drilling resolutions. “A lot of these bans and moratoriums have been issued in places that will never see any drilling in New York.

“Generally, we’re only going to see drilling in the Marcellus that’s deeper than 2,000 feet. Those areas have predominantly signed positive resolutions. There and almost no bans. Binghamton was the one ‘black mark,’ and now we’ve gotten rid of that.”

Lebous ruled that Binghamton’s ban didn’t violate New York’s Environmental Conservation Law, specifically Section 23-0303. The judge also said the local judges in the Dryden and Middlefield cases issued “well reasoned, well founded decisions, [and] determined that [Section 23-0303] does not supersede local government’s rights to regulate the use of the lands within their jurisdictions.”

Binghamton Mayor Matthew Ryan told NGI’s Shale Daily he was heartened by that part of Lebous’ ruling. He said the city could appeal, enact a new ban, or both. “We were very happy that he held up the Middlefield and Dryden decisions,” Ryan said Thursday. “He reaffirmed the right of communities to pass moratoriums or bans. He disagreed only with the way we did [ours].

“We’re looking at a possibility of an appeal because we think there are some appeal issues. Then depending on that appeal, or maybe simultaneously, I will try to go back and correct [this]. I’m not sure if we’re going to wait until the end of the appeal before we pursue a moratorium or ban based on what the judge claims we did improperly. I haven’t decided that yet with my legal team.”

According to the FracTracker Alliance, a nonprofit organization that tracks the shale industry, 39 municipalities in New York State have enacted bans on fracking as of Sept. 19, while another 103 have enacted moratoriums. Another 87 municipalities are considering some form of prohibition, either through a ban or a moratorium.