State’s top court to hear case testing home rule over fracking

The state's highest court, the Court of Appeals, in Albany, has agreed to hear two cases  dealing with local bans on hydraulic fracturing.

ALBANY — The state’s highest court will hear appeals to decisions that local bans on oil and gas mining are not superseded by state authority to regulate the process. The Court of Appeals, which hears cases that break new legal ground, made the announcement last Thursday.

Municipalities across the state have debated what power they have to prevent hydraulic fracturing, while the state’s Department of Environmental Conservation waits for a review of health studies before releasing regulations for the controversial process of extracting natural gas.

The court could decide the appeals this spring.

Locally, the Albany County Legislature temporarily banned hydraulic fracturing in 2012 — the southwestern portion of the county, including the Helderberg Hilltowns, sits on Marcellus Shale — and voted last month to ban its waste materials from county roads and water treatment facilities. The town of Guilderland, which does not sit on Marcellus shale, passed a ban on hydraulic fracturing in 2012. All four Hilltowns are in the process of examining the potential impact of hydrofracking.

Article 23 of New York’s Environmental Conservation Law has a supersession clause that pre-empts any local laws regulating oil, gas, and solution mining. Two companies with an interest in hydraulic fracturing — Norse Energy Corp. and Cooperstown Holstein Corporation — were unsuccessful at the lower court levels in arguing against local town bans.

The Appellate Court, Third Judicial Division — the middle-level court — ruled unanimously to uphold the Tompkins and Otsego County supreme courts’ decisions in favor of the local bans.

The town of Middlefield is a defendant against Cooperstown, while Dryden, with its town board, is against Norse. A memorandum opposing Cooperstown’s motion for leave to appeal was filed by Middlefield’s attorneys, Whitman, Osterman & Hanna. It argues that the statute dealing with regulation of oil, gas, and solution mining doesn’t interfere with the home-rule authority given by the state constitution.

Dryden Resources Awareness Coalition is a proposed intervenor. The Court of Appeals also allowed other parties to file amici curiae, or friends of the court, briefs along with the appeals. They include the Washington Legal Foundation, the New York State Farm Bureau, the Association of General Contractors of New York State, and the American Petroleum Institute, et al.

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