12:47pm

Fri March 22, 2013
Regional Coverage

Arguments over fracking bans focus on one sentence

Oral arguments were completed Thursday in the case that will decide whether New York towns have the right to ban gas drilling. The case comes down to how the panel of four judges will interpret a single sentence.

Environmental Conservation Law 23-0303 says, "The provisions of this law shall supersede all local laws and ordinances relating to the regulation of the oil, gas and solution mining industries."

It then goes on to affirm local authority over road use and property taxes.

In two cases before the state Appellate Court in Albany, lawyers for the Towns of Dryden and Middlefield argued that a ban on drilling using the towns' zoning authority were not regulation - the towns are saying where companies can drill, not how.

Deborah Goldberg of Earthjustice argued on behalf of the Town of Dryden. She said that ECL 2303's mention of "laws and ordinances" only applied to regulation, which is separate from land use authority.

Industry lawyer Tom West said during oral arguments that if the legislature wanted to let towns ban drilling through zoning, it would be have been spelled out in that law.

In his argument on behalf of a landowner with a gas lease in Middlefield, Scott Kurkoski pointed to Environmental Conservation Law 23-0301:

It is hereby declared to be in the public interest to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste; to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be had, and that the correlative rights of all owners and the rights of all persons including landowners and the general public may be fully protected...

Kurkoski argued that local laws against drilling violate that state policy, which was created after an oil crisis in the 1970s.

"There is a state interest that overrides many of the issues we have been talking about here," said Kurkoski.

Goldberg countered that, in bringing the cases against Dryden and Middlefield, the industry is arguing for the right to drill anywhere that sits on top of gas-producing shale.

"I don't know of any other public policy in the state that rises to the point where everything else yields to it," says Goldberg.

Both sides faced hard questions from the judges. Goldberg said afterwards that it’s impossible to guess what the judges will decide.

“Sometimes they ask really hard questions because they actually agree with the person that they’re questioning,” said Goldberg.

A decision is expected in the next six to eight weeks and, no matter the outcome, the case will likely be appealed to the Court of Appeals, the state's highest court.

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