Editor's Note: This story comes from David Chanatry from the NY Reporting Project at Utica College
On a rainy night in early September, more than 100 people packed a firehouse in the town of Dryden, near Ithaca, for yet another public meeting about hydro-fracking. It was mostly an anti-fracking crowd, and Chip Northrup, a former oil company executive turned anti-fracking activist, was preaching to the choir.
“You can’t depend on the kindness of Texans to repair your roads,” said Northup.
Dryden is one of the growing number of municipalities around the state that have passed moratoriums or outright bans on the controversial drilling method. It takes so much machinery and so many trucks to drill and “frack” a well, the town board says it won’t mesh with the character of the place.
Town Supervisor Mary Anne Sumner says they have simply clarified existing zoning rules that forbid heavy industry.
“All our zoning since we’ve had zoning has never allowed heavy industrial uses,” sais Sumner. “We consider it to be in conflict with our quiet, rural, way of life here. So that’s the rationale. We’re allowed to regulate how our land is used. We have never allowed heavy industrial uses and we’re not gonna start now.”
The state’s environmental conservation law gives the authority to regulate the oil and gas industry to the DEC. But Dryden and other towns are saying they’re not regulating the way the industry –operates- they’re not allowing drilling in the first place.
That’s an argument that doesn’t make sense to Henry Kramer, a co-founder of a landowners group, the Dryden Safe Energy Coalition.
“The rationale they are using is that although they do not have the right to regulate fracking in New York state, they have the right to ban it,” said Kramer. “We find that completely illogical and not in keeping with state law.”
Environmental lawyer Helen Slottje has been pushing the land use strategy, advising dozens of communities in New York, including Dryden, that they can use zoning to keep gas drilling out.
“We use that land use authority to encourage towns to be very explicit in what they do not want,” said Slottje. “Most comprehensive plans we look at talk about preserving rural character and that people have chosen to live in these communities for very specific reasons, wanting a certain quality of life.”
Dryden’s ban is now being challenged by a Colorado company in a lawsuit that’s being closely watched around the state. Anschutz Exploration has invested $5.1 million to drill more than 22,000 acres of land here. The company claims the environmental conservation law is on its side because of a provision saying it “supercedes” all related local laws except those regarding roads and property taxes.
The purpose of that provision, says John Holko of the Independent Oil and Gas Association of New York, was to create consistent—and tough—regulations across the state.
“One of the reasons the oil and gas law is written the way it is in New York state is because it is very technical,” said Holko. “The state has the people, personnel and knowledge to basically regulate it. To do it at a local level would be very, very difficult.”
That clause may be the industry’s ticket to drill even if townspeople don’t want it. These two competing interpretations of law seem destined for a court fight, and Anschutz and Dryden may be the test case that resolves the issue. Professor John Nolon of the Land Use Law Center at Pace University says there may be a precedent in an earlier decision about mining.
“The courts determined with regard to the extractive mining industry that similar language in the environmental conservation law did not preempt local governments from regulating the locating of gravel mines but rather their operations,” said Nolon.
That decision would make perfect sense to Helen Slottje, the lawyer advocating drilling bans based on zoning.
“What’s the point of having a comprehensive plan or zoning if an industrial site can go right next door to any house?” asks Slottje. “What’s the point of saying, we’re gonna regulate whether I can put a hair salon in my house or how big my shed is, but you can put a 5 acre wellpad next to my house?”
For its part, the DEC says that when reviewing drilling applications, it will take into account whether they’re consistent with local land use, planning and zoning laws. No drilling permits are expected to be issued until next year at the earliest.