12:00pm

Thu October 13, 2011
Energy

Challenge to Dryden fracking ban could echo across New York State

There's a showdown brewing in Dryden, New York.

Back in August, the town passed a zoning ordinance that banned the practice of hydrofracking for natural gas.  A month later, they were being sued by gas company Anschutz Exploration.

What happens here - who flinches, who wins - will reverberate across the rest of New York state.  And it all hinges on a simple question: 

Can you, or can't you, ban drilling within your own town limits?

"Incompatible with our lifestyle"

Town officials in Dryden and across New York started preparing for gas drilling years ago, when they began to see more and more leasing activity, says Dryden's supervisor Mary Ann Sumner.

"Somewhere in this process we realized ... that the gas industry was a heavy industrial use that is simply incompatible with our lifestyle," she says.

So Dryden attacked the issue on two fronts. First, it tried to work with the state to lessen drilling's impacts. 

Environmental Conservation Law (ECL) 2303 gives the state sole power to regulate gas companies. That law, passed in the 1970s, would probably be much more contentious if it were to come to the state legislature today, says University of Albany planning law professor Erica Powers.

"Like many laws, that amendment to the constitution was proposed by the industry," says Powers.

Sumner says at the outset, Dryden made an effort to comply with that law.  They tried to collaborate with the state Department of Environmental Conservation (DEC) on Anschutz Exploration’s application to drill locally.

But town officials noticed some problems with Anschutz's application  - it had ignored the presence of a stream and power transmission lines - and ended up feeling like they couldn’t trust the DEC to protect them.

So Dryden applied its second tactic: it classified drilling as "heavy industry," prohibiting it under the town's zoning law. And that triggered the lawsuit that Dryden is facing today.

"Sacred" law

Anschutz holds leases on about 20,000 acres in Dryden and has invested about $5 million on those leases, according to its filings in Tompkins County Supreme Court.

Their Albany-based lawyer, Tom West, cites ECL 2303 as the basis for Dryden's ban encroaching on the state's authority.

"Any effort by municipalities to regulate or ban natural gas drilling activities conflicts with the extensive statutory scheme administered by the DEC, which tells you where and when you can drill, what size drilling units, where the well pads should go," says West.

But that statute is colliding head-on with Article IX of New York's constitution: home rule.  That provision gives municipalities jurisdiction over what happens within their borders, and has deep cultural roots, according to Powers.

"It's throughout New England, and it is sacred," she says. "There are layers of suspicion that are almost religious that have to do with 'them' - 'them' is not 'us'. So if 'us' is a town, 'them' is the county, never mind the state, never mind the feds."

That suspicion translates to a desire to keep decision making as close to home as possible, according to Cornell professor Susan Christopherson.

"People who are the most affected by any decision have a right and responsibility to make decisions about that decision, rather than people who are not affected by the decision at all making those decisions," she argues.

"Public interest" of the state

But drilling supporters argue that the right to make decisions about natural gas don't rest with the locals; it's enshrined in state law that exploiting natural resources is the jurisdiction of the DEC.

Lawyer Scott Kurkoski is making that argument on behalf of a landowner who wants to lease her land in the Town of Middlefield, in a suit similar to the one against Dryden.

"The law is there to make sure we are still able to pursue a greater ultimate recovery of oil and gas. And that's what the law says, that it's in the public interest of our state to do that," says Kurkoski.

He also argues that - despite Dryden's negative experience working with the DEC on Anschutz's application - towns and villages can't match the agency's expertise, to make sure drilling proceeds safely.

"This is not something new for [the DEC]. And I think that's the point that the DEC would want to get across - that in New York we've been doing this for over a hundred years," Kurkoski notes. "They have a good regulatory system."

None of this is strictly academic.  According to the Tompkins County Council of Governments, about 40 percent of Dryden is under lease. That could mean more than 40 well pads in the town of just 13,000 people. And what happens here and in Middlefield will affect challenges to other drilling bans in the state.

The matter will ultimately be settled by a judge - but not quickly.

Both sides are scheduled to appear in court in November, but that's unlikely to be the last volley. Powers and Christopherson both say they expect the matter to bounce from court to court, before being decided by the state's highest court, the Court of Appeals.