11:32am

Wed February 22, 2012
Gas drilling

Court: Town of Dryden can ban fracking

Clarification: We originally referred to the location of the court where the case was decided as Cortland County. The decision was made by a Cortland County judge, on behalf of Tompkins County, a separate court within the 6th District. 

In a decision released Tuesday, the state Supreme Court in Cortland County upheld the Town of Dryden's ban on drilling.

In his decision, Supreme Court Justice Phillip R. Rumsey says New York's oil and gas law gives the state the authority to decide how, but not where, drilling can be done.

Under this construction, local governments may exercise their powers to regulate land use to determine where within their borders gas drilling may or may not take place, while DEC regulates all technical operational matters on a consistent statewide basis in locations where operations are permitted by local law.

The decision will come as a relief to the dozens of other towns in New York that have banned  or placed moratoriums on drilling.

Dryden's ban was enacted in August as an amendment to a zoning law already prohibiting heavy industry. In September, the Denver-based oil and gas company Anschutz Exploration filed a lawsuit challenging that ban.

Dryden's lawyer, Mahlon Perkins, says the state will still regulate the technical aspects of drilling.

"And it was left to municipalities under their zoning authority and land use authority to regulate the "where" and even the 'if.'"

Anschutz is considering whether or not to appeal the decision based on business factors, says the company's lawyer Tom West.

"That'll be based on cost and whether or not they're going to remain involved in New York State," says West.

He says the outcome of a landowner challenge of the Town of Middlefield's ban on drilling will also determine the next step.

"Ultimately, this issue may have to go back to the legislature but I think it's premature at this point," West predicts. "We need to get a ruling from the courts and we need to get an appellate ruling clarifying what is and what is not allowed."

West notes that the Dryden decision runs counter to that of Pennsylvania.

"Pennsylvania kept the authority of municipalities to regulate some aspects of natural gas activities but required the municipalities to declare that drilling is a permitted use in every zone. So they've essentially taken the opposite position saying municipalities cannot ban natural gas drilling."