Home rule fracking decision challenged in Avon

Apr 25, 2013

Gas and Oil producer Lenape Resources has filed a note of appeal as part of an attempt to overturn a court decision made in March that allowed the town of Avon to maintain its moratorium on fracking. This is the third case of this kind in upstate New York.

President of Lenape Resources John Holko says his company can’t survive in Avon if the fracking moratorium is upheld.

“The moratorium itself is a cancellation of a business. It’s not a prohibition of an opportunity, it’s the elimination of our existing business,” said Holko.

The company lost a law suit against the town of Avon last month, in which it argued that the local ban was illegal as the Department of Environmental Conservation has sole power to regulate the state’s gas and oil industries.

A case challenging similar home-rule decisions in the towns of Dryden and Middlefield is currently before the Appellate Division of the state Supreme Court.

Lenape’s lawyer is expected to file a formal appeal in mid-May, after the Appellate Division makes a ruling on the other two cases.

John Holko says if the moratorium is overturned in the court of appeals, Lenape would resume operations in Avon, which is south of Rochester. He says it may also encourage other industry partners to bring business back to New York.

“Other industry people, and other operators who have operated in New York state for upwards of 100 years are very concerned, and they look at this decision as something that is a major decision in changing the rule that the State of New York has over the oil and gas regulation,” Holko says.

“Lenape was convinced by the industry in general to say, ‘hey, look, we need a much clearer answer.’ So, to get a clearer answer, my understanding from the legal people is that you sort of have to go up the ladder and get the ultimate answer.”