New York's top court asked to hear fracking home rule cases

Jun 5, 2013

New York’s top court has been asked to decide whether local governments can ban the practice of hydraulic fracturing.

Last month a mid-level appeals court ruled unanimously in favor of upholding local bans in the towns of Dryden and Middlefield, meaning there’s no requirement for the case to be taken up by the top court.

In 2012 and 2011, the Court of Appeals accepted only 6.4 and 7.4 percent respectively, of the cases requesting permission to be seen, according to an annual report. This makes the chance they’ll take the home rule cases a slim one.

But, there are more comparable cases that are being taken to the lower courts, and attorney Michael Joy says eventually the issue needs to be heard at the state’s highest level.

“Ultimately I think it’s going to be essential for the court of appeals in New York to resolve this issue. Which case, or cases, it might ultimately take up to hear I can’t say yet, but this is a fundamental issue of New York law that really only the court of appeals can properly address.”

Joy is the attorney for oil and gas producer Lenape Resources, a company that is appealing a similar home-rule decision upheld in the western New York town of Avon.

Joy says the Dryden and Middlefield decisions re-affirm the need for Lenape to appeal the Avon case, which will go to the fourth division of the appellate court in the fall session.

“This case is not only a make or break case for Lenape Resources, but it has broad implications for an oil and gas industry that’s been operating in New York for more than 100 years,” Joy says.

“Essentially what it says is, notwithstanding how long you’ve been a New York operator, notwithstanding the investment you’ve made in communities or the infrastructure that you’ve built, the three votes of a local town board can put companies out of business. That’s not the right result under New York law and it has to be changed.”

Gas companies argue that local towns are not allowed to regulate the gas and oil industry under state law.

But, lower courts have sided with municipalities, going on a previous court decision regarding sand and gravel mining that upheld a local ban.