The myriad legal issues concerning
hydrofracking in New York has spawned a whole body of law, with primary authorities such as case law, statutes, and zoning regulations, as well as secondary sources such as law review and newspaper articles, on this rapidly changing field of law.
Court cases and analysis Dryden and Middletown In February 2012, two cases of first impression,
Anschutz Exploration Corp. v. Town of Dryden and
Cooperstown Holstein Corp. v. Town of Middletown, dealt with the issue of whether towns in New York can use local
zoning laws to ban hydrofracking, within their
police powers, or whether such action would be preempted by N.Y. Environmental Conservation Law § 23-0303 (2). In each of these two cases,
New York Supreme Court ruled in favor of the defendant towns, that the state Oil, Gas, and Solution Mining Law's superseding language did not preempt their zoning laws. The legal and political issues raised by these explosive cases were the subject of a seminar organized on February 28, 2012 by the
Albany Law School. The
Anschutz case got the most publicity and analysis in the immediate aftermath, because it was decided a week earlier than the
Cooperstown court. Opponents of hydrofacking "emerged trimphant" after winning
Anschutz. Justice Phillip R. Rumsey relied in part on cases from
Colorado that allowed local governments to regulate gas drilling,
Anschutz distinguished this zoning situation from a bonding requirement, which is a direct regulation of the industry that is preempted by the N.Y. Department of Environmental Conservation's permit fees and regulatory scheme. That court also relied on cases that allowed "exclusionary zoning" that prohibits of "natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers ...." In
Cooperstown, a farmer named Jennifer Huntington leased 400 acres of her land for natural drilling, and she sued after the town changed its zoning laws to ban fracking. While
Albany Times-Union columnist Fred LeBrun noted that while opponents are expecting a win, "plenty in our government" predict a successful appeal, so he "wouldn't bet either way". Searches of the website for, and an inquiry into, the Third Department shows that neither losing party has perfected their appeals as of October 17, 2012. Further complicating the appeals,
Norse Energy has also become involved in the
Anschutz case. Back in October 2011, Norse Energy put up their
leases for sale, claiming the moratorium by Governor Paterson had hurt the international company's prospects. Instead, Norse bought Anschutz's leases, and thus would have to be replaced as lead plaintiff against the Town of Dryden. Norse Energy's attorneys appear to be arguing that a "
greater good" will come about if they are allowed to drill despite the local government's opportunity. For a unanimous court, Presiding Justice
Karen A. Peters upheld the lower court's denial of
intervenor status for the environmental group, DRAC, and the constitutionality of the Town of Dryden's zoning ordinance. The Court allowed Norse Energy to be substituted for Anschutz. "As a preliminary matter," they approved "Supreme Court's denial of DRAC's motion to intervene", based on the group's failing to prove "a substantial interest ... different from other residents of the Town". Rather, noting the Town could do a good job at defending its interests, instead granted
amicus status to DRAC and a half dozen others. Citing the
New York State Constitution and four
New York Court of Appeals cases, the Third Department noted that the state's local governments have broad
home rule powers under its state constitution. It agreed with the lower court that the local law is not pre-empted, either expressly or by implication. On June 30, 2014, the New York Court of Appeals upheld the local zoning ordinances, as well as the lower court cases that had allowed them, in a 5-2 decision authored by Judge
Victoria Graffeo.
Other cases In July 2012, Lenape Resources, a natural gas drilling company, threatened to sue state and local governments over a hydrofracking ban by the town of
Avon. Also in July 2012, Justice Ferris Lebous ruled in the
Broome County, New York case of
Jeffrey v. Ryan that, while the city of
Binghamton has the right to enact a local regulation, they did not enact a proper moratorium.
Administrative response While those appeals were pending,
The New York Times reported in mid-June 2012 that Governor Cuomo and his staff were deliberating on a plan to restrict hydrofracking to five counties in the southern tier of New York, along the Pennsylvania border, where the Marcellus shale is deepest and drilling is least likely to pollute
well water supplies in those
aquifers. Drilling would not be allowed in these areas: • New York City and its
watershed • Towns that have banned or not agreed to the practice (over 100 towns and villages have banned it, but several dozen have asked for it) • The
Catskill State Park (which is 'forever wild' under the
New York State Constitution) • Areas of surface land directly over certain aquifers • Land within
National Historic Landmark Districts. In August 2012, LeBrun filed a column that a limited plan was moving forward to allow hydrofracking in the Southern Tier, which he characterized as the "[e]nd of the anti-frack world".
Joseph Martens, the
Commissioner of DEC, has overall responsibility for regulating all hydrofracking programs. Eugene Leff, his Deputy Commissioner for Remediation and Materials Management, has responsibility for "Materials Management, Environmental Remediation and Mineral Resources", which would include hydrofracking regulations, if any were to be released. Bradley Field is the Director for "Management and regulation of mineral resource development [and] Oil & Gas Regulation ... [to] Oversee permitting, compliance and enforcement of all regulated wells in New York". All media and other press inquiries must go directly through Emily DeSantis, at Press Operations, who is the Department spokesperson and who issues all press releases. Leff was one of the panelists on NYSBA's 2012 seminar on "Marcellus Shale: New Regulations and Challenges". Susan Lawrence, writing an
open letter to the group, cited six reasons for the effective ban: • The DEC had "not finalized" the environmental impact statement. • Governor Cuomo and the DEC were waiting for the Department of Health to issue a report first. • The state budget for
FY 2013-2014 had no funding for state employees to process the necessary applications. • Cuomo had stated publicly that he would not decide on the issues until after the
November election. • The
Dryden and
Middletown cases were pending before the New York Court of Appeals. • The public had concerns in light of the recent increase in rail shipments of oil from hydraulically fractured
Bakken formation wells in North Dakota through
Upstate New York. ==See also==