In a decision released Tuesday, supreme court judge Ferris Lebous concluded that the City of Binghamton's prohibition on natural gas development and storage in the city is invalid.
In an interview Friday, Binghamton Mayor Matt Ryan said the city will probably appeal.
"We thought, and we still think, it was done legally," says Ryan. "Actually, from how I read the decision, if it had been an outright ban, it would have been ok."
The law, which had a two-year sunset clause, was passed in December by a 6-to-1 vote.
A group of land and business owners filed a complaint in Broome County Supreme Court against the city in June, claiming the law harms their ability to do business.
They questioned the procedure used to pass the law, saying that it was presented as a use of police power to prevent imminent drilling, but that in fact it is a moratorium which should have only been passed after careful study and with a plan to address the city's concerns over drilling.
The case hinged on what kind of law it was.
Judge Lebous, in siding with the law's opponents, concluded:
The city cannot just invoke its police power solely as a means to satisfy certain segments of the community. Rather, the city must satisfy the well established legal requirements that show a dire emergency; that the moratorium is reasonably calculated to alleviate a crisis; and that they are taking steps to solve the problem.
The Binghamton law was different than the other anti-drilling laws passed by more than 100 towns in upstate. Those laws are explicitly written as zoning laws, and were put through the standard zoning process.
According to Ryan, the law was passed quickly, without going through the formal zoning process, in part because some city council members were leaving office at the end of the year and wanted to pass fracking regulation before leaving office.
Judge Lebous leaned on the words of Ithaca lawyer David Slottje, who represented the City of Binghamton in this case and has advised many towns in upstate on drafting bans and moratoria, to make the case that the law should be seen as a moratorium and therefore improperly passed.
Almost two full pages in the 15-page decision focused on Slottje's presentations at city council:
Despite Respondents' protestations to this Court to the contrary, it is quite clear that even they thought this would be a moratorium. At the December 5, 2011 Working Session of the Binghamton City Council Mr Slottje stated: "This is for a two-year period, if you decide to pass this, there will be a de facto moratorium within the City on essentially gas drilling, both extraction activities, disposal of waste activities, and so on..."
One takeaway to remember is that this won't apply to the other bans and moratoria passed in New York. The courts dealing with those, known as the Dryden and Middlefield cases, have so far found in favor a local government's right to pass zoning that prohibits drilling.
And the judge also noted that the police powers are unnecessary before the Department of Environmental Conservation creates regulations for high volume hydraulic fracturing.
